Visa Lawyer Blog

Articles Posted in Employment Based Petitions

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In this post, we discuss the latest developments in U.S. immigration news.

As you may recall, back in September USCIS issued a proposed rule requiring petitioners filing H-1B cap-subject petitions to pay a $10 registration fee for each petition submitted to USCIS for the H-1B cap selection process, beginning with the H-1B fiscal year 2021 cap season.

Today, November 7, 2019 the United States Citizenship and Immigration Services (USCIS) published the final version of this rule which will become effective beginning December 9, 2019, although the $10 fee will not be required until registrations are submitted beginning with the fiscal year 2021 H-1B cap selection process.

The final rule is scheduled to be published in the Federal Register tomorrow November 8th. An unpublished version of the rule is available here.

Extension of Temporary Protected Status

On November 4, 2019, USCIS published a notice in the federal register announcing the automatic extension of TPS-related documentation for beneficiaries under the TPS designations for El Salvador, Haiti, Honduras, Nepal, Nicaragua, and Sudan.

TPS-related documentation for individuals from these countries will remain valid through January 4, 2021.

This automatic extension will apply to all TPS-related documentation (including Employment Authorization Cards) set to expire on the following dates:

  • Beneficiaries under TPS designations for El Salvador, Haiti, and Sudan—January 2, 2020
  • Beneficiaries under TPS designations for Honduras—January 5, 2020
  • Beneficiaries under TPS designation for Nepal—March 20, 2020

A beneficiary under the TPS designation for any of these countries who has applied for a new EAD but who has not yet received his or her new EAD is covered by this automatic extension, provided that the EAD he or she possesses contains one of the expiration dates indicated above.

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House Passes CR Bill to Fund EB-5 through November 21st 

Great news! On September 19, 2019, the House of Representatives passed H.R. 4378, a continuing resolution bill that will fund the EB-5 Immigrant Investor Program through November 21, 2019.

H.R. 4378 has now passed on to the Senate where it will be considered and voted on. The bill is expected to clear the Senate and be signed into law by the President prior to September 30, 2019, the fiscal year deadline.

If the Senate is unable to pass the bill by that date, a government shutdown will likely occur until Congress is able to pass the continuing resolution bill to keep the government open and federal programs afloat.

Performance Data Form I-829 and Form I-526

Just days before the House passed H.R. 4378, USCIS published its third quarterly report for FY 2019 providing insight on performance data for petitions filed by entrepreneurs to remove conditions (Form I-829) and performance data for Immigrant Petitions filed by Alien Entrepreneurs (Form I-526).

What does the Quarterly Report reveal?

  • First off, USCIS is approving dramatically fewer I-526 than ever before:
    • Completion rates for I-526 have fallen 63%, comparing FY2019 with FY2018 year-to-date.
    • In FY2019 Q3, USCIS processed fewer I-526 than ever before in its history – only 579 completions for the whole quarter, as compared with 3,000-4,400 completions per quarter last year.
    • In FY2019 Q3, a record number of I-526 decisions were denials — 42%. The average I-526 denial rate is 20% in FY2019 YTD, as compared with 9% in FY2018 YTD.
  • Secondly, USCIS is processing dramatically fewer forms in total than ever before:
    • Completion rates across EB-5 forms (I-526, I-829, I-924) have collectively fallen 59%, comparing FY2019 with FY2018 year-to-date.
    • In FY2019 Q3, IPO processed more I-829 than in the previous quarter, but still a low volume – lower than average 2017/2018 performance for I-829.
  • Overall this data reflects reduced performance combined with backlogs causing extremely long processing times (The Current Processing Times report indicates that an I-924 is only considered “outside normal” processing after 90 months)

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In this post, we would like to keep our readers informed about Visa Bulletin projections for the coming months. Charles Oppenheim, Chief of the Visa Control and Reporting Division of the U.S. Department of State provides a monthly analysis of each month’s Visa Bulletin including discussion of current trends and future projections for immigrant preference categories. This post will focus on the EB-1, EB-2, EB-3, and EB-5 categories.

Below are the highlights of those trends and projections for the coming months.

Employment-Based Immigration: First Preference EB-1

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Fresh off the press! In this blog post we will discuss a new proposed rule that is set to be published in the Federal Register on September 4, 2019. We have reviewed an advance copy of this proposed rule and will tell you everything you need to know about the new rule.

At a Glance

The proposed rule will require petitioners filing H-1B cap-subject petitions to pay a $10 registration fee for each petition they submit to USCIS for the H-1B cap selection process beginning with the H-1B fiscal year 2021 cap season.

Overview

As you may recall, on January 31, 2019, DHS published a final rule requiring petitioners seeking to file H-1B cap-subject petitions (including those eligible for the advanced degree exemption) to first electronically register with USCIS during the designated registration period (“H-1B registration final rule”).

USCIS stated that the new H-1B registration system would be implemented beginning with H-1B fiscal year 2021 to ensure the registration system and process work correctly.

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Recently our firm successfully filed an H-3 visa for a Front Office Manager position with a prestigious hotel chain. Here are a few things we learned along the way to help you file a successful H-3 visa for a trainee.

Establish frequent communication with the petitioner

            In the case at issue the employer/petitioner was a major hotel chain with a great reputation, making it easier to establish the hotel as a distinguished organization with the capacity to hold such training. Our point of contact was the Director of Human Resources.

Create a detailed training plan

            Creating a tailored training plan for the employer/petitioner was by far the most difficult part of filing this case because the hotel had its own rules and regulations for approving training sessions. At first, we submitted a very detailed training plan for approval to the Hotel Managers. We went through additional drafts and revisions to have the final training plan approved. Here were the steps we took to get to the final plan:

Step 1: Communicate with the petitioner:

At the outset we established what the employer/petitioner needed to include in the training plan. In this case, we had to create a training plan from scratch, because the employer/petitioner was not satisfied with the initial draft. We started by clarifying the scope of what was being offered to the beneficiary. Our office went through several rounds of drafts before coming to an agreement of what should be included in the training plan.

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In this post we bring you the latest immigration news.

Final Rule Inadmissibility on Public Charge Grounds

The Department of Homeland Security has posted the official version of final rule “Inadmissibility on Public Charge Grounds,” in the Federal Register.

The Final Rule will become effective at 12:00 a.m. EST on October 15, 2019.

Who does the rule apply to?

The rule will be applied to applications and petitions postmarked (or electronically submitted) on or after October 15, 2019.

The rule will not apply to applications and petitions pending with USCIS prior to October 15, 2019.

To read the official version of the rule please click here.

USCIS Completes Return of Unselected H-1B Petitions

As of August 15, 2019, USCIS has returned all FY2020 H-1B cap-subject petitions that were not selected in the lottery. Unselected petitions contain a rejection notice explaining that the petition was not selected in the lottery.

If you submitted a FY 2020 H-1B cap-subject petition that was delivered to USCIS between April 1 and April 5, 2019, and you do not receive a receipt notice or returned petition by August 29, 2019, contact USCIS for assistance.

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We are happy to report that on July 10, 2019 the House of Representatives passed the Fairness for High-Skilled Immigrants Act of 2019 (H.R. 1044), a bill that if enacted, would amend the Immigration and Nationality Act to eliminate the per-country numerical limitation for employment-based immigrants, and increase the per-country numerical limitation for family-sponsored immigrants.

What is H.R. 1044?

H.R. 1044 is a piece of legislation that was first introduced before the House of Representatives on February 7, 2019 by Representative Zoe Lofgren.

Employment-Based Sponsorship

The bill seeks to drastically change the way that our employment-based green card system works by eliminating the “per country cap” that limits the number of green cards that may be issued to applicants per fiscal year depending on their country of origin also known as country of chargeability.

Currently, employment-based workers fall into one of five “preference categories” including EB-1 Priority Workers, EB-2 Professionals Holding Advanced Degrees/Persons of Exceptional Ability, EB-3 Skilled Workers, Professionals, EB-4 Special Immigrants, and EB-5 Investors. Each of these categories is subject to Congressional numerical limitations, as well as per-country limitations.

H.R. 1044 proposes to remove the per-country limitations to enable applicants to obtain employment visas based on merit, and not based on country of origin. The bill would also eliminate the 7% cap for employment-based visas and remove an offset that reduced the number of visas for individuals from China.

The bill also establishes transition rules for employment-based visas from FY2020-FY2022, by reserving a percentage of EB-2 (workers with advanced degrees or exceptional ability), EB-3 (skilled and other workers), and EB-5 (investors) visas for individuals not from the two countries with the largest number of recipients of such visas. Of the unreserved visas, not more than 85% would be allotted to immigrants from any single country.

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The H-1B season for Fiscal Year 2020 has officially come to a close.

The United States Citizenship and Immigration Services (USCIS) has begun the process of returning all H-1B cap-subject petitions that were not selected in the H-1B lottery for fiscal year 2020.

As you may recall, the H-1B lottery for FY 2020 took place on April 10, 2019. Petitioners who were selected in the lottery were mailed receipt notices of selection from USCIS during the month of April. If you or your petitioner did not receive such a notice, then your petition was not selected in the lottery and will be returned.

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In this post, we would like to keep our readers informed about Visa Bulletin projections for the coming months. Charles Oppenheim, Chief of the Visa Control and Reporting Division of the U.S. Department of State provides a monthly analysis of each month’s Visa Bulletin including discussion of current trends and future projections for immigrant preference categories.

Below are the highlights of those trends and projections for August 2019:

EB-1 Worldwide: As demand has increased in recent weeks, this category is expected to retrogress in early August, and return back to April 22, 2018 in October of this year.

EB-1 India: This category is not expected to advance prior to October 2019. During October 2019, this category is expected to return to a Final Action Date of February 22, 2017.

EB-1 China: This category is not expected to advance prior to October 2019.  

EB-2 Worldwide: Due to increased demand in recent weeks, this category is no longer expected to remain current through September 2019. A retrogression is expected in this category in early August 2019. EB-2 Worldwide is expected to become current again in October 2019.

EB-2 India: This category is expected to continue to advance slowly, by a few days or a week.

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In this post, we would like to keep our readers informed about Visa Bulletin projections for the coming months. Charles Oppenheim, Chief of the Visa Control and Reporting Division of the U.S. Department of State provides a monthly analysis of each month’s Visa Bulletin including discussion of current trends and future projections for immigrant preference categories

Below are the highlights of those trends and projections for July 2019:

For Employment-Based Preference Filings:
You must use the Final Action Dates chart in the Department of State Visa Bulletin for July 2019.

Employment-Based Categories:

EB-1 Worldwide: Demand for this category remains steady. For the month of July EB-1 remains at April 22, 2018 and is not expected to become current in the foreseeable future. The Final Action Date will likely not change in July.

  • EB-1 India: No forward movement is expected in this category before October 2019. It is expected that this category will return to a Final Action Date of February 22, 2017 in October of this year.
  • EB-1 China: Has advanced to May 8, 2017 in the July visa bulletin.

EB-2 Worldwide: Current in July and will remain current through September 2019.

  • EB-2 India: Is expected to advance slowly during the month of July by a few days or one week at a time. Some forward movement may occur during the summer is there is lower EB-2 Worldwide demand.
  • EB-2 China: Has advanced to November 1, 2016 in the July visa bulletin. The category will continue to advance due to low demand.

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