Visa Lawyer Blog

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Great News! Today, USCIS announced that the computer-generated selection process has been completed to select the H-1B petitions necessary to fulfill both the general cap and master’s cap for this H-1B season. The randomized lottery was completed yesterday April 11, 2018.

This H-1B season, USCIS received 190,098 H-1B petitions for Fiscal Year 2019 during the filing period that began on April 2nd. During Fiscal Year 2018, USCIS received 199,000 H-1B petitions during the filing period and completed the randomized lottery on the same day (April 11th).

USCIS will now begin the process of rejecting and returning all petitions that were not selected during the randomized lottery. As in previous years, USCIS completed the selection process for the master’s cap first, and all unselected master’s cap petitions were then placed in the random selection process for the general cap, giving master’s cap applicants a greater chance of being selected. In previous years, our office began to receive rejection notices for applicants that were not selected from mid to late June.

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Beginning April 30, 2018 until October 31, 2018, the California Service Center (CSC) and the U.S. Customs and Border Protection (CBP) at the Blaine, Washington, Port of Entry (POE) will implement a joint 6-month pilot program for the benefit of Canadian citizens seeking entry to the United States in L non-immigrant visa status pursuant to the North American Free Trade Agreement (NAFTA).

The L-1 Visa:

The L-1 visa designation allows a foreign company to transfer an executive or manager to an existing U.S. subsidiary or parent company of the foreign entity, or allows the foreign entity to send the executive or manager to the U.S. for the purpose of establishing an affiliated subsidiary or parent company of the foreign entity (L-1A). In addition, the foreign company can transfer an employee with specialized knowledge to the U.S. on an L-1B visa. To qualify, applicants must have worked abroad for the foreign employer for at least one year within the proceeding three years.

Under the NAFTA program, Canadians can apply to receive an L visa at the border and are not required to file an L visa application with USCIS or at a U.S. Consulate abroad. Up until this point, the application procedure involved same-day processing of an L application where the worker would file Form I-129 with supporting evidence at a Class A Port of Entry to the United States, or airport pre-clearance location, where the petition would be granted or denied at the port of entry.

Pilot Program

Under the new pilot program, petitioners may file an L petition on behalf of a Canadian citizen by first submitting Form, I-129, Petition for a Nonimmigrant Worker, and supporting evidence to the California Service Center, before the Canadian citizen seeks nonimmigrant L-1 admission to the United States through the Blaine Port of Entry. Petitioners should include a cover sheet annotated with “Canadian L” to ensure quick identification of the Form I-129 and for any correspondence thereafter, such as a response to a request for evidence (RFE).

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Today April 6, 2018 the U.S. Citizenship and Immigration Services (USCIS) announced that the H-1B general bachelor’s cap has been reached for fiscal year 2019. In addition, USCIS received more than 20,000 petitions for the advanced degree exemption.

Sometime within the next week, USCIS will conduct a random computer-generated process, known as a ‘lottery,’ to select the petitions needed to fill the 65,000-bachelor’s cap. USCIS will first randomly select the petitions that will count toward the advanced degree exemption. Unselected advanced degree petitions will then be entered into the random lottery that will be conducted to fill the 65,000-bachelor’s cap. All unselected cap-subject petitions will be rejected and in turn CIS will return the H-1B packages containing filing fees and rejection notices. CIS has not yet provided any details concerning the date the lottery will be conducted. We suspect it will occur within the next week. In the meantime, cap exempt H-1B petitions will continue to be processed including H-1B worker extensions, petitions requesting a change to the terms of an H-1B workers’ employment, and petitions requesting concurrent work for an H-1B worker.

So, what’s next?

Petitions filed with regular processing

If your employer filed your petition with regular processing, you will not know whether your petition has been selected in the lottery until late April through mid-May. Petitions filed under regular processing that were selected in the lottery will receive hard copy ‘receipt notices’ from USCIS. These notices will only be received by the attorney on file and the employer. In previous years, we began to receive these receipt notices in late April.

Receiving a receipt notice is great news. It means that you have been selected in the lottery, but it does not mean that your application has been approved. Once selected, your application will undergo adjudication, which takes several months.

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On Friday, March 30, 2018, the Department of State published a 60 day notice in the Federal Register entitled “Notice of Proposed Information Collection: Application for Immigrant Visa and Alien Registration,” proposing to require immigrant visa applicants to submit five years of social media history as part of the information requested on the DS-260 Immigrant Visa Electronic Application used by applicants to schedule Immigrant Visa interviews at U.S. Embassies and Consulates worldwide. The DS-260 is an Electronic Form that is completed by immigrant visa applicants and used by consular officials to determine whether the applicant is eligible for an immigrant visa.

Specifically, the Department wishes to, “add several additional questions for immigrant visa applicants. One question lists multiple social media platforms and requires the applicant to provide any identifies used by applicants for those platforms during the five years preceding the date of the application.”

Information provided by immigrant visa applications relating to their social media will be used to enhance “vetting” of applicants to verify their identity, ensure that they meet all visa eligibility requirements, and to prevent individuals from entering the country who pose a threat to the county’s national security, or have been associated with a terrorist organization.

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The Trump administration has ended an Obama-era policy that required immigration officials to release pregnant women in detention from federal custody. As of at least December, the Trump administration has directed Immigration and Customs Enforcement (ICE) to treat pregnant detainees as they would any other, except for women who have reached their third trimester. The new policy change aligns with the President’s hard line stance on immigration, and executive orders signed into law by the President during the past few months.

Under the new policy, immigration officials must now make a case-by-case determination “taking any special factors into account,” when deciding whether to release pregnant women in federal custody, including whether the alien has an asylum claim based on a credible fear of persecution. Other factors that are taken into account include the woman’s medical condition, potential danger to the public, and potential for flight. Pregnant women who remain in detention will continue to receive necessary medical care and a record of pregnant women in custody must be kept by immigration officials.

Philip Miller, ICE Deputy Executive Associate Director, divulged that 35 pregnant women are currently in federal custody subject to mandatory detention, and that 506 pregnant women have been detained by ICE since December. Miller however would not comment on how many of these women were deported, or released from detention. “In terms of risks to the community, we look at criminal history. Just as there are men who commit violent acts, heinous acts, so too have we had women in custody who have been convicted of committing heinous, violent acts,” Miller commented when discussing the factors that mitigate against release.

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A new policy memorandum issued by the United States Citizenship and Immigration Services (USCIS) makes clear that different H-1B petitioners may not file multiple H-1B petitions for a single beneficiary. This applies in a situation where different employers seek to file an H-1B petition for the same person.

According to the memorandum, in Matter of S-Inc, the Administrative Appeals Office (AAO) made clear in the decision that “related entities” are prohibited from making multiple H-1B filings for the same beneficiary. The memorandum clarifies that the term “related entities” “includes petitioners, whether or not related through corporate ownership and control, that file cap-subject H-1B petitions for the same beneficiary for substantially the same job. Absent a legitimate business need to file multiple cap-subject petitions for the same beneficiary, USCIS will deny or revoke the approval of all H-1B cap-subject petitions filed by “related entities” for that beneficiary.”

In light of this new memorandum, we caution petitioners against filing multiple H-1B petitions for the same beneficiary, even if the different petitioners are not related, where the cap-subject petition is being filed for the same beneficiary for substantially the same job.

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H-1B Filing Season Opens Next Week

USCIS will begin accepting H-1B petitions that are subject to the FY 2019 cap on April 2, 2018. To make sure you are prepared click here for a running checklist of supporting documents typically included in a cap-subject petition. In addition please click here to read our H-1B guide. For filing assistance, and tips on increasing your chances of approval please contact our office for a consultation. Best of luck!

Power of Attorney No Longer Accepted

Beginning March 18, 2018, the United States Citizenship and Immigration Services (USCIS) will no longer accept power of attorney signatures on forms submitted to the agency.

Now, applicants and petitioners for immigration benefits will be required to provide a valid signature on forms submitted to the agency. This prohibition will apply to forms that are filed by a corporation or other legal entity, meaning that an authorized representative or agent of the corporation or entity must be prepared to provide a valid signature on all forms submitted to USCIS.

Individuals who will remain unaffected by this new policy change are minors who are younger than the age of 14, or individuals with qualifying disabilities. USCIS will no longer allow applicants or petitioners the opportunity to correct a faulty signature, and will instead reject a form submitted without a valid signature.

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President Donald Trump is digging his heels in on DACA, although he is perhaps much more interested in securing $25 billion in funding, to build his long-promised wall between the United States and Mexico. On Friday, Congress voted to pass a $1.3 trillion spending bill, designed to fund the government through the end of fiscal year 2018.

Early on Friday, the President delivered a threatening message to Congress via Twitter, intimating that he would veto the spending bill, because it did not provide any relief to DACA recipients such as a path to citizenship. The President however failed to mention that also absent from the bill, was a promise from Congress to fully fund the President’s border wall.

Hours later, the President spoke to reporters and said that he had decided to sign the spending bill, despite the absence of a bipartisan compromise for Dreamers, because the bill ultimately provided much-needed funding for the military. The President told reporters, “My highest duty is to keep America safe. We need to take care of our military. I say to Congress, I will never sign another bill like this again.”

The President blamed the Democrats for failing to reach a deal with Republicans that would put Dreamers on a path to citizenship tweeting this morning, “DACA was abandoned by the Democrats. Very unfair to them! Would have been tied to desperately needed wall.” The President has vehemently insisted that any legislative action providing relief to Dreamers, must also concede $25 million in funding to his administration to build the border wall.

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In what seems like déjà vu, today, March 20, 2018 the United States Citizenship and Immigration Services (USCIS) formally announced that the agency will be temporarily suspending premium processing service for all fiscal year 2019 cap-subject petitions, including petitions that seek an exemption for individuals who possess a U.S. master’s degree or higher. The suspension is expected to last until September 10, 2018. Based on similar announcements made by USCIS in the past, we expect premium processing service to remain suspended until at least September 10.

As some of you may remember, USCIS suspended premium processing in a similar fashion during April of last year for fiscal year 2018 cap-subject petitions, and lifted the suspension until September 18 of 2017.

Petitions not subject to FY 2019 Cap

Premium processing requests will continue to be accepted for H-1B petitions NOT subject to the FY 2019 cap. USCIS will make an announcement as we get closer to September notifying the public regarding any decision to resume premium processing for cap-subject H-1B petitions. In previous years, USCIS lifted the suspension in July for beneficiaries who were exempt from the cap, because of their employment at a qualifying cap-exempt institution, organization, or entity. We expect USCIS to follow a similar pattern in July of this year, with the temporary suspension for cap-subject petitions being lifted sometime in early September.

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Andrew, a real estate professional and Vice President of a large real estate firm headquartered in Asia, came to our office to discuss the possibility of filing for an EB-2 National Interest Waiver. To receive a national interest waiver, the applicant must demonstrate a high level of achievements and unique skills pertaining to their position to justify a waiver of the requirements of a job offer and labor certification filing.

The challenge in Andrew’s case was the absence of demonstrated achievements in the real estate business, and various non-disclosure agreements the client had signed restricting the documentation he could provide to demonstrate his exceptional ability in the industry, based on the high net worth projects he had worked on in the real estate industry. There were however other strengths that Andrew possessed that would qualify him for the national interest waiver. Andrew possessed a law degree from his home country, a master’s degree in taxation, a master’s degree in real estate from an ivy league university, and he was licensed to practice law in the United States. In addition to possessing these advanced degrees, two of which were received in the United States, Andrew’s career in the real estate sector spanned nearly 21 years.

The difficulty however remained in that Andrew did not have many documents to present to USCIS demonstrating his achievements as an entrepreneur and real estate investor, and the projects he was working on could not be disclosed based on the confidentiality agreements he had signed. Our experienced staff and attorneys decided that the best strategy in Andrew’s case was to highlight his education and vast experience in the industry having maintained high level positions in the industry, leading international real estate teams, heading overseas real estate and property management implementation strategies across various continents, and initiating/implementing domestic real estate acquisition projects totaling more than $4 billion in investment. We are happy to report that our strategy was successful and Andrew’s national interest waiver was recently approved. Here is how we did it.

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