Visa Lawyer Blog

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USCIS announced today May 17, 2019, that the agency has completed data entry for all H-1B petitions selected for fiscal year 2020, including petitions filed under the U.S. advanced degree exemption.

USCIS will now begin the long process of returning all H-1B cap-subject petitions that were not selected in the random computer-generated lottery that took place on April 10, 2019. USCIS will provide an announcement once it has completed the return of unselected H-1B petitions.

Petitioners who have not had the H-1B filing fees cashed, can expect to receive the return of their H-1B petition.

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On May 10, 2019, USCIS made important updates to its policy manual regarding public services which appear in PA-2019-03.

USCIS has clarified its policy regarding responses to service requests. It is the goal of USCIS to respond to a service request within 15 calendar days from the date the service request was filed with USCIS.

Requests Receiving Priority

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TPS Designations for Nepal and Honduras Will Continue

Today, May 10, 2019, the Department of Homeland Security provided a notice in the Federal Register about their decision not to terminate the Temporary Protected Status designation of Honduras and Nepal.

Beneficiaries under the TPS designations for Nepal and Honduras will retain their TPS status, pending the resolution of the case Ramos v. Nielsen and any appeals that follow.

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On August 8, 2018, DHS issued a policy memorandum directing USCIS to change the way in which the agency counted the days of unlawful presence for F, M, and J status violators.

Under that policy memorandum, F, M, and J nonimmigrants who accrued more than 180 days of unlawful presence during a single stay, and then departed the United States, would trigger either a 3- or 10-year bar to admission depending on the period of unlawful presence accrued in the United States prior to departure. The new policy would begin counting the days of unlawful presence the day after an F, M, or J status violation, unless an exception applied.

These bars would prevent the foreign national from applying for an immigration benefit in the future, without the approval of a waiver of inadmissibility.

This policy was to become effective on August 9, 2018; however, it quickly grew controversial and inspired a slew of lawsuits. Prior to this attempted policy change, USCIS did not begin counting a period of unlawful presence until a USCIS immigration official or immigration judge made a formal finding of a status violation.

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The White House recently issued a Presidential Memorandum to strengthen asylum procedures and safeguard the asylum system against fraud.

The Presidential Proclamation specifically orders the Attorney General and Secretary of Homeland Security to take several measures to enhance the security of the asylum system by July 28, 2019.

These measures require the Attorney General and Secretary of Homeland Security to enact proposals and/or regulations that would:

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USCIS has issued new policy guidance clarifying good moral character requirements for naturalization.

Naturalization applicants should be aware that a violation of a federal controlled substance law, including for marijuana, remains a conditional bar to establishing good moral character for naturalization purposes, even where that conduct would not be found to be an offense under state law.

Although some states have enacted laws which decriminalize the cultivation, possession, and distribution of marijuana, under federal law such actions are unlawful and may lead to serious immigration consequences. For naturalization purposes, as previously stated such an offense is a conditional bar for applicants wishing to apply for naturalization.

An applicant who is involved in certain marijuana related activities may be found to lack good moral character if found to have violated federal law, even if such activity is not unlawful under applicable state or foreign laws.

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On April 22, 2019, the White House issued a memorandum seeking to curb the high rates of nonimmigrant overstays for nationals from certain countries.

Specifically, the memorandum identifies aliens who overstay their period of lawful admission under the terms of their visa or Visa Waiver Program.

The memorandum instructs the Secretary of State to identify conditions that contribute to the high rates of overstay of nationals from countries in which the total overstay rate is greater than 10 percent in the combined B-1/B-2 nonimmigrant visa category, based on the DHS 2018 Entry/Exit Overstay Report.

Within 180 days, the President has instructed the Secretary of State, Attorney General, and Secretary of Homeland Security to come up with a plan to curb B-1/B-2 visa overstay rates with respect to identified countries of interest. Such a plan may include the suspension or limited entry of individuals of those countries holding B-1 or B-2 visas, targeted suspension of visa issuance for certain nationals, limits to duration of admission, etc.

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Great news! Our office has begun to receive our first I-797 receipt notices in the mail for petitions that were filed with premium processing in the lottery. So far, our office has received four such receipt notices for individuals who filed under the advanced degree exemption. All four of these notices came from the California Service Center.

Over the next few weeks we expect to continue to receive receipt notices for individuals who filed under the regular bachelor’s cap. If you have not yet received a receipt notice, do not be discouraged, because it is still too early to tell if you have been selected in the lottery.

As we previously suggested, Petitioners should continue to monitor their bank accounts closely. If the filing fees are charged to the account, then that petition has been selected in the lottery.

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We are pleased to announce very exciting news for our Israeli clients. The U.S. Embassy in Israel has announced the implementation of the U.S. E-2 Investor Visa Program for Israeli nationals, beginning May 1st.

Our Israeli clients have been waiting for this opportunity for years and we are very happy to tell you that you will now have the opportunity to apply for the E-2 visa as an Israeli national, beginning May 1st.

The E-2 investor visa is a non-immigrant temporary visa that allows foreign nationals from participating countries to invest in the creation of a new business, or in an existing business. The E-2 visa applicant can apply for the E-2 visa to develop, direct, or provide their specialized skills to the company they are investing in.

To qualify for a Treaty Investor (E-2) visa:  

  • The investment must be substantial and sufficient to ensure the successful operation of the enterprise;
  • The business must be a real operating enterprise;
  • The investor must be traveling to the U.S. to develop and direct the enterprise;
  • If the applicant is not the investor, he or she must be employed in a supervisory, executive, or highly specialized skill capacity.

Requirements

  • The investor, either a person, partnership or corporate entity, must be a citizen of a treaty trade/investment country, and be involved in international trade.
  • If the investor is a company, at least 50% of the owners in the qualifying company must maintain the nationality of a treaty trader country if they are not lawful permanent residents of the U.S. If these owners are in the U.S., they must be in E-1 or E-2 status.
  • The investment funds and the applicant must come from the same Treaty Country.
  • The business in which investment is being made must provide job opportunities or make a significant economic impact tin the United States. The business should not be established solely for the purpose of earning a living for the applicant and his or her family.

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Exciting news H-1B FY 2020 Filers!

Yesterday USCIS announced that on April 10, 2019, the computer-generated lottery was conducted to select enough petitions to meet the H-1B regular cap and the U.S. advanced degree exemption for fiscal year 2020.

In accordance with the new H-1B regulation, USCIS first conducted the selection process for H-1B cap-subject petitions submitted on behalf of all beneficiaries, including those that may have been eligible for the advanced degree exemption. USCIS then selected a number projected to reach the advanced degree exemption from the remaining eligible petitions.

In total, USCIS has announced that the agency received 201,011 H-1B petitions during the filing period that began on April 1st, including petitions filed for the advanced degree exemption.

On April 5th, USCIS announced that the agency had received enough petitions to reach the regular cap of 65,000 visas.

What happens next?

Our office will begin to receive the receipt notices for petitions that were selected in the lottery within the coming weeks. Petitioners should keep a close eye on their bank accounts to see whether USCIS has charged the filing fees to the account. If the fees were charged, then your petition was selected in the lottery.

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