On April 6, 2018, USCIS announced that it reached the 65,000 H-1B visa cap for FY 2019, including the 20,000 U.S. advanced degree exemption known as the “master’s cap.” Every year since 2014, the cap has been reached during the first week of April.

Once again, a lottery will be conducted and cases that are not exempt from the “cap” will no longer be accepted for inclusion in the lottery.

Exempt cases include those filed:

  • To extend H-1B petitions for those already in H-1B status;
  • To amend the terms and conditions of employment for current H-1B workers;
  • To allow current H-1B workers to change employers;
  • To allow current H-1B workers to work concurrently in another H-1B position; and
  • By exempt employers, such as institutions of higher education.

USCIS has not yet announced how many petitions it received for FY 2019. Except for last year, the number of petitions received has increased each year since 2014.

  • 2014:             124,000
  • 2015:             172,500
  • 2016:             233,000
  • 2017:             236,000
  • 2018:             199,000

Once the lottery is conducted, USCIS will reject and return filing fees for cases that are not selected.

Because premium processing has been suspended for H-1B cap filings, receipt notices for accepted cases will arrive by mail and will not be sent on an expedited basis.

Jackson Lewis will continue to provide updates on the H-1B Cap lottery as they become available.

USCIS and CPB at the Blaine, Washington, Port of Entry (POE) have formally announced that from April 30, 2018, until October 31, 2018, the agencies jointly will implement a pilot program for Canadian citizens seeking entry in L status pursuant to NAFTA.

L-1 admission is for intracompany transfers into the U.S. of managers, executives, and specialized knowledge employees who have been working outside the U.S. for your organization. Under NAFTA, Canadians may apply at the border for admission as an L-1, bypassing the service center filings and visa applications at U.S. consulates that apply to nationals of countries other than Canada.

Until now, the procedure for such application has been a same-day process in which the workers file the employer’s Form I-129 Petition for Nonimmigrant Worker with supporting evidence at a Class A Port of Entry to the U.S., where the petition is adjudicated and admission granted or denied all in one procedure at the POE.

Under this new program, petitioners will first submit the Form I-129 and supporting evidence to the California Service Center (CSC) by mail or courier using a cover sheet annotated “Canadian L” to ensure quick identification. USCIS and CBP encourage participating petitioners to make the initial filing with the USCIS as early as possible to avoid delays. This will not be a same-day process since a CSC approval will be needed ahead of the grant of admission by CBP at the port of entry. The announcement contained no specific information about processing times.

Once the petition is approved, applicants must bring a copy of the Form I-129 approval to the POE at Blaine. The POE will continue to make the final admissibility determination. If the applicant appears at Blaine with only the I-129 receipt notice before USCIS has adjudicated the petition, there “may be delays while USCIS remotely adjudicates the form.”

Although participation in the pilot program at Blaine is voluntary, it is “strongly encouraged” by USCIS and CBP. Any petitions filed at Blaine during the pilot period without the USCIS pre-filing will be adjudicated not at Blaine, but at the closest Class A POE optimized for L processing. Those stations are Point Roberts, Sumas, and Vancouver.

The stated purpose of the program is to facilitate Canadian L filings. At the conclusion of the six-month pilot, the agencies will determine the program’s efficiency and shortcomings in order to improve the process. The expectation is that the goal is to expand this program.

During the pilot, Canadian applicants can, of course, choose not to apply at Blaine at all. They may still apply for admission at any optimized Class A CBP POE or at an airport pre-clearance site.

There is still much more to know about how the pilot program will work particularly with regard to fees and timing. Jackson Lewis will provide updates as they become available.

The question whether to apply for L-1 admission through the pilot program or another procedure will vary depending on the facts and circumstances of your case and the options available at the time. We recommend that you reach out to your Jackson Lewis immigration counsel to evaluate the options on any petition that you are considering.

 

Deferred Enforced Departure (DED) for Liberians will terminate on March 31, 2019.

USCIS has now published filing instructions in the Federal Register for those Liberians affected who wish to extend their employment authorization through the DED termination date.  Employment authorization is automatically extended until September 30, 2018 for Liberian DED beneficiaries who have employment authorization documents with an expiration date of March 31, 2018.  Those who wish to extend their employment authorization until the 2019 termination date must apply by filing a Form I-765.  USCIS started accepting these applications on March 30, 2018 and advises beneficiaries to apply as soon as possible to avoid possible gaps in employment authorization.

The hollowed-out, colored eggshells known as Cascarones that children (and adults) fling at each other often appear around the time of the Easter holiday and the Department of Homeland Security’s U.S. Customs and Border Protection (CBP) unit is reminding travelers that Cascarones are a restricted commodity.

When the Cascarones hit their targets, they explode with a shower of confetti. These “confetti eggs” reportedly first appeared in Asia and were brought to Italy by Marco Polo. At that time, the eggs were filled with perfumed powder. The commodity later made its way to Spain and then were further popularized in Mexico where they are thrown during fiestas that take place during Lent.

CBP regulates these Easter “eggs” to prevent the spread of Newcastle Disease and Highly Pathogenic Avian Influenza (HPAI) through contaminated eggshells. Travelers are restricted to 12 Cascarones per person. “[T]he shells may be decorated, etched, or painted but they must be clean, dry, and free of any egg residue. They may contain confetti or other unregulated items.” Newcastle Disease is highly contagious and has a mortality rate of up to 90 percent for exposed birds, including chickens, turkeys, ducks, partridges, pheasants, quail, pigeons, and ostriches. Because Mexico is affected with Newcastle Disease and HPAI, all fresh eggs, raw chicken, and live birds or poultry from Mexico are prohibited from the United States.

Easter is not the only religious holiday that concerns CBP when it comes to controlling harmful pests and diseases from the United States. The Jewish harvest festival of Sukkot also raises some agricultural concerns when it comes to ethrogs (a yellow citrus fruit), palm fronds, and twigs of willow and myrtle that are used as ceremonial objects. Most of these objects are allowed into the United States after inspection by a CBP agricultural specialist if no pests or symptoms of disease are found.

CBP jurisdiction includes using specialists to defend the United States from potential agricultural threats. While traditionally, agricultural inspections focused on the unintentional introduction of pests or diseases, CBP has increased its focus on agro-terrorism.

 

 

Deferred Enforced Departure (DED) for Liberians, a humanitarian relief program similar to TPS (Temporary Protected Status), will terminate on March 31, 2019 according to a formal memo released by President Donald Trump. Liberian DED was set to expire on March 31, 2018. President Trump announced that there will be twelve-month wind down period to ease the transition for as many as several thousand Liberians – many of whom have been in the United States for close to twenty years.

The DED program for Liberians was initiated by President Bill Clinton in 1999 and has been renewed in one form or another by Presidents George W. Bush and Barack Obama – until now. Prior to the announcement, approximately 50 bipartisan members of Congress asked the President to extend the DED program for at least three years to allow Liberia to strengthen its infrastructure and stabilize following two ruinous civil wars and the Ebola outbreak. But President Trump responded in his memo that “Liberia is no longer experiencing armed conflict and has made significant progress in restoring stability and democratic governance.”

President Trump’s decision to terminate the program is similar to the decisions he has recently made regarding DACA and TPS for individuals from Haiti, El Salvador and Nicaragua, among others. As with DACA, the President again noted that “[o]nly Congress can legislate a permanent solution addressing the lack of an enduring lawful immigration status for those currently protected by DED who have lived and worked in the United States for many years.”

USCIS will automatically extend employment authorization documents for six months until September 30, 2018, for current Liberian DED beneficiaries who have EADs expiring on March 31, 2018. To obtain work authorization for the final six months, beneficiaries will have to apply for employment authorization. Updates on how to apply will be published in the Federal Register likely within the week.

If you have questions about verification of work authorization for Liberian beneficiaries of DED, please reach out to your Jackson Lewis attorney.

 

 

 

According to CBP personnel, a pilot program is being developed that would eliminate “instant” border adjudications of L-1 NAFTA applications. The pilot program is expected to be introduced at the Blaine, Washington port of entry.  At this time, processes and procedures are still under review and consideration but it appears that the current CBP border application process (with a post-adjudication notification to USCIS) would be replaced by a process that would continue to permit submission to CBP at the border (as the regulations mandate), but would require that USCIS first approve the L-1 petition in what is hoped would be a quick turnaround.

The pilot program could begin as early as April 30, 2018, but we await a formal announcement about the program and its future implications. Jackson Lewis will provide updates as they become available.

Since 2011, government processing of green card applications has taken longer and longer. Concerns expressed by lawmakers, immigration advocates, and the public prompted Senator and Ranking Member of the Senate Committee on Homeland Security and Governmental Affairs Claire McCaskill (D-MO) in late-2016 to ask the Office of Inspector General (OIG) of the DHS to review these green card processing timelines. USCIS, the agency with oversight for reviewing green card applications, aims to adjudicate green card applications within 120 days. That goal was not being met.

The OIG’s March 2018 report found:

  • The information about green card processing times on the USCIS website was unclear and unhelpful to applicants—especially because the “Processing Cases As of Date” was not the receipt date of the application (although most applicants would have assumed that); and
  • USCIS was far from meeting its 120-day goal (the average processing time was at least 240 days), and the 120-day goal was unrealistic.

The OIG recommended that USCIS:

  • Change the way it presents information on its website to more clearly reflect wait times; and
  • Determine a more realistic processing goal.

USCIS concurred with the OIG, responding that it is hampered in meeting the 120-day goal by, among other things:

  • Lack of experienced staff;
  • Lack of funding for more overtime;
  • The time it takes external agencies to process security and background checks; and
  • The time necessary to thoroughly vet applicants, including the issuance of Requests for Evidence (RFEs) and Notices of Intent to Deny (NOIDs).

Further, USCIS said it:

  • Is testing a new method of determining processing times;
  • Will work toward posting processing time information within 1-2 weeks, rather than 6 weeks;
  • Is working on redesigning its webpages to give applicants a clearer understanding of the true processing times; and
  • Will conduct an analysis of processing times and respond with new goals by the end of 2018.

Some of the things that USCIS is already doing to address the problems:

  • Released the new Form I-485, Application to Register Permanent Residence or Adjust Status, which it hopes will help eliminate some the RFEs that were slowing down the adjudication process; and
  • Launched a pilot project to introduce new processing times to the website.

The pilot program is testing the following four forms using a new automated methodology for calculating processing times:

  • N-400, Application for Naturalization;
  • I-90, Application to Replace Permanent Resident Card;
  • I-485, Application to Register Permanent Residence or Adjust Status; and
  • I-751, Petition to Remove Conditions on Residence.

In the pilot program, the processing times are displayed based upon the actual receipt dates of the applications. The low end of the range shows the time it takes to complete 50 percent of the cases and the high end is the time it takes to complete 93 percent of the cases. Applicants will be able to make “outside of normal processing time” requests for any case that is beyond the 93 percent mark, USCIS said.

During this pilot phase, USCIS will seek further feedback.

Further to President Donald Trump’s Buy American and Hire American executive order, which directs the DHS to protect the interests of U.S. workers and make sure that there is no fraud, abuse, or circumvention of the laws, USCIS has issued a new policy memorandum, “Contracts and Itineraries Requirements for H-1B Petitions Involving Third-Party Worksites.”

The guidance clarifies its position on employees who are employed at “third-party” worksites. Previous guidance on this topic had been misinterpreted and misapplied, USCIS said, and the guidance supersedes and/or supplements earlier guidance.

USCIS recognizes that as vendors and subcontractors become involved in the employment relationship, it becomes “more difficult to assess” the bona fides of the case. Therefore, to maintain the integrity of the program, USCIS requires petitioners to show, by a preponderance of evidence, that beneficiaries who will work at third-party locations will be employed in a specialty occupation throughout the requested period and that the petitioner will maintain an employer-employee relationship with the beneficiary throughout the period.

To do this, more evidence will be required than before. In addition, that evidence must be specific and corroborated, including:

  • Evidence of actual work assignments (i.e., technical documentation, cost-benefit analyses, brochures, and funding documents);
  • Copies of contractual agreements between all parties involved in the assignment;
  • Itineraries with the specific dates and locations of the services to be provided, along with location contact information; and
  • Copies of detailed statements of work signed by the end-user client detailing the specialized duties, the qualifications, the duration of the assignment, and the hours to be worked, and a detailed description of who will supervise the beneficiary.

The more attenuated the relationship between the petitioner and the end-user client, the more important it is for the petitioner to trace how it will maintain the employer-employee relationship.

When it comes to extensions, the guidance makes clear that there will be no deference to prior adjudications. When filing an extension, the petitioner will have to provide evidence that the above requirements were met for the “entire prior approval period,” as well as for the upcoming period.

Gathering the necessary information for a third-party location H-1B petition can be challenging, especially because the petitioner may have to obtain specific documentation from the end-user client. If you have any questions about how to proceed with such a petition, please reach out to your Jackson Lewis attorney.

 

The omnibus spending bill has been passed and signed by President Donald Trump in time to avoid a government shutdown. From an immigration perspective, here is what is “in” and what is “out” for the rest of the 2018 fiscal year.

In:

  • $1.6 billion in funding for southern border fencing (but not the $25 billion requested by the President for “the wall”);
  • Funding for 328 additional CBP officers;
  • Sanctuary cities were not defunded, so funding is in;
  • Reauthorization of EB-5 Regional Center Program, E-Verify, the Non-ministerial Special Immigration Religious Worker Program, and the Conrad State 30 J-1 Waiver for physicians; and
  • H-2B visa relief
    • Secretary of DHS has the discretion to raise the number of visas available for the fiscal year to 129,547 (from 66,000)
    • Employers may use private wage surveys
    • The 10-month work season is still in
    • Flexibility for the seafood industry to stagger the entry of workers is still in

Out:

  • DACA is not mentioned and is left in limbo;
  • ICE must cut its detention beds; and
  • The dairy industry lost the suspension of the “seasonal requirement” for H-2A visas.

At the last moment, Trump threatened to veto the bill because it did not include the wall funding and did not address the “dreamer” issue. During his signing announcement, the President expressed his unhappiness with the bill, but ultimately said he signed it as a matter of national security and to take care of the military.

Called on to speak about the bill, DHS Secretary Kirstjen Nielsen added that it was “unfortunate that Congress chose not to listen to the security on the front lines” about the wall. She also noted she will continue to work with Congress to “fund the department and give it the tools and resources it needs to execute the mission the American people have asked us to do.”

Despite its prior announcement, USCIS has just notified the public that the E-Verify enhancements will be postponed.  Accordingly the system will remain in operation through this weekend and until further notice and all regular timelines will remain in force.

Jackson Lewis will continue to provide updates as they become available.