USCIS FINISHES H-1B LOTTERY
May 17, 2018
The H-1Blottery has been completed. USCIShas finished the data entry for all FY 2019 H-1B cap-subject petitions. Musillo Unkenholt continues to see H-1Bchecks being cashed and continues to receive H-1B receipt notices in ourmail. Therefore H-1B cap-subjectpetitioners should not lose hope yet if they have not received an H-1B receiptnotice. We expected that we willcontinue to see H-1B receipts for the next two weeks.
After the final H-1B receipt notices are sent byUSCIS, they will begin returning all H-1B cap-subject petitions that were notselected. In past years it has takenUSCIS 1-2 months to complete this process. Musillo Unkenholt does not expect the final H-1B returns until late Juneor early July.
TWO MAJOR CHANGES FOR F-1 STUDENTS
May 16, 2018
USCIS has recently issued two updates that impact F-1 students.
Unlawful Presence
On May 11, 2018, the USCIS issued apolicymemorandum that changed the rules regarding unlawful presence for F-1students. Unlawful presence begins toaccrue once a foreign national has stayed beyond the end date on his/her I-94card. Because F-1 I-94 cards do not havean end date, but show D/S (duration of status) as the term of stay, unlawfulpresence did not apply to F-1s.
As of August 8, 2018, individualsin F, J, and M status who fail to maintain their status will start accruingunlawful presence on or after the date of one of the following events:
- The day after DHS denies the student’srequest for an immigration benefit with a formal finding that the studentviolated status while adjudicating the benefit request;
- The day after the student’s I-94expires;
- The day after an immigration judgeor in certain cases, the Board of Immigration Appeals (BIA), orders the studentexcluded, deported, or removed;
- The day after the student no longerpursues a course of study or authorized activity, or the day after the studentengages in unauthorized activity (e.g. unauthorized employment); or
- The day after the student completeshis/her course of study or program, including any authorized CPT or OPT plusany authorized grace period.
Individuals who have accrued morethan 180 days of unlawful presence are generally subject to a 3 year bar ofre-entry to the US. Individuals whoaccrue more than 365 days of unlawful presence are generally subject to a 10year bar of re-entry to the US.
STEM OPT
In April 2018, USCIS updated itswebsite regarding STEMOPT extensions to indicate students are not permitted to engage in STEM OPTat third party worksite locations. Noformal policy memo or update was announced regarding this change.
The 2016 STEM OPT Rule requiresonly that the student be a bona fide employee of the employer signing the I-983training plan. The I-983 doesrequire that the student “receive on-site supervision and training” but doesnot specify if the employer must provide this supervision.
This issue has been raised with DHSand members of Congress through industry groups and the American ImmigrationLawyers Association and is currently under review.
JUNE 2018 VISA BULLETIN: LATEST UPDATE AND ANALYSIS
May 12, 2018
The Department of State has just issued the June 2018 Visa Bulletin. This is the ninth Visa Bulletin of Fiscal Year 2018. This blog post analyzes this month's Visa Bulletin.
June 2018 Visa Bulletin
Table A: Final Action Dates -- Applications with these dates may be approved for their Green Card (Permanent Residency card) or Immigrant Visa appointment.
EB Class | All Other | CHINA | INDIA | MEXICO | PHIL'PNES |
EB-1 | C | 01JAN12 | 01JAN12 | C | C |
EB-2 | C | 01SEP14 | 26DEC08 | C | C |
EB-3 | C | 01JUN15 | 01MAY08 | C | 01JAN17 |
Table B: Dates for Filing -- The DOS may work on applications with these dates. But the Visa cannot be approved until the date is current per Table A.
EB Class | All Other | CHINA | INDIA | MEXICO | PHIL'PNES |
EB-1 | C | C | C | C | C |
EB-2 | C | 01FEB15 | 01APR09 | C | C |
EB-3 | C | 01JAN16 | 01SEP08 | C | 01JUL17 |
MU Law Analysis (all references are to Table A unless noted)
All Other: The EB-2 has been current for many years. The EB-3 is also current and is expected to remain current for the foreseeable future.
China (mainland-born): As with all categories this month, the movements were nonexistent. It would not surprise MU if the Chinese numbers did not move for the remainder of the fiscal year. China EB-2 is a better bet to progress than EB-3, although it remains doubtful that EB-2 progresses ahead of EB-3.
India: There is a similar story with India as with China. No progress, outside of a minor 4 day movement in EB-3. We would not be surprised to see minor movements in these categories before the end of the fiscal year.
Mexico: Mirrors All Other in analysis.
Philippines: Phils EB-3 stayed the same, which is not surprising considering the enormous progressions of the last few years. The Phils EB-3 number will probably continue to only move negligible, reflecting the large numbers of Philippine RN EB-3 petitions that were filed in 2016-2018. There is a chance of a small progression in the next few VBs.
H-1B EMPLOYERS SUE USCIS TO STOP HARASSING EMPLOYER-EMPLOYEE RFEs
May 3, 2018
On May 1 a significantlawsuit was filed in federal court in New Jersey. The Plaintiffs, three IT consultingcompanies, seek to overturn some of the most harassing parts of the USCIS’ policyagainst H-1Bs.
The legal issue is simple: USCIS isonly allowed to enforce laws that are passed by Congress. USCIS is not allowed to create laws. Thelawsuit alleges that the USCIS’ policy of seeking third-party contracts, vendorletters, itineraries, and endless details over employer-employee relationshipsare all outside USCIS’ authority.
Jon Wasden is the attorney whofiled the case. Jon worked at USCIS'sAdministrative Appeals Office and the Justice Department and has substantial experiencein these issues.
If your H-1B has been denied forthese reasons, please let me knowand I can put you in touch with Jon or you can visit his website.
DHS DIR. CISSNA CONTINUES THE ASSAULT ON H-1Bs
April 30, 2018
Earlier this month, USCISDirector Francis Cissna, in aletter to Sen. Grassley (R-IA), described a number of forthcomingpolicies aimed at restricting the H-1B. Dir. Cissna’s policy changeshide behind fraud concerns. The real target is reducing legalimmigration.
The new restrictions that USCISplans to unilaterally impose include:
- Rewrite the definition of“Specialty Occupation”. USCIS will rewrite the definition ofspecialty occupation. Under the current “bottom-up” approach, USemployers decide who comes to America. The agency’s “big government”rewrite will create more regulation, more USCIS officer discretion, and lessaccountability for USCIS officers. These policies are being producedbecause the administration thinks that it knows who are the “best andbrightest,” instead of the marketplace.
- Denying spouses from Working In TheUnited States: USCIS’ long-rumoredplan to eliminate H-4 EADs was announced in the USCIS’ semiannualregulatory agenda.
- Ratcheting up third-party worksiteH-1B denials. Despite no objective evidence that fraud exists inthird-party staffing situations, USCIS seeks to ask for additional evidencethat it does not ask for in first-party worksite assignments. This issueseems ripe for litigation. It seems inevitable that an H-1B employer willsuccessfully challenge the Service’s overreaching requests in this area.
CHECKING IN ON THE VISA BULLETIN
April 20, 2018
The Department of State’s VisaBulletin guru, Charlie Oppenheim, hosts monthlymeetings with the American Immigration Lawyers Association. CharlieOppenheim is the Department of State’s Chief of the Control and ReportingDivision. He is the officer who is responsible for producing the Visa Bulletineach month.
This month’s Check In With Charliefeatured predictions about EB2 and EB3, which are the most popular categoriesfor readers of this Blog. Here are someof this month’s highlights:
Categoriesin which final action dates will remain the same include-
EB-1 China and India;
EB-2 India;
EB-3 China and Philippines;
EB-4 El Salvador, Guatemala andHonduras, and
EB-5 China.
Categories with modest advancements-
EB-2 China will move forward onemonth to September 1, 2014;
EB-3 India will advance threemonths to May 1, 2008;
EB-3 Other Workers China and India willadvance one and three months respectively, to May 1, 2007 and May 1, 2008; and
EB-4 Mexico will advance roughlyfive weeks to October 22, 2016.
It is likely that mostemployment-based final action dates will hold at their May dates for the monthof June with some changes possible in July. What occurs is entirely dependenton demand that may materialize, and continuing consultations with USCIS. Thewildcard this year that could cause unanticipated fluctuations in the finalaction dates is the pace of USCIS field office processing of I-485s.
USCIS RECEIVES 190,000 H-1B CAP PETITIONS
April 13, 2018
USCIS announced that it received 190,098 petitionsduring the filing period, including petitions filed for the advanced degreeexemption (compared to the 199,000 H-1B petitions received during the FY2018 filing period).
USCIS is in the process of running the H-1B lottery and notifyingH-1B cap winners. Petitioners shouldexpect about 44% of their H-1B cap filings to be H-1B cap winners. Based on prior years, we will receive H-1Blottery winner receipts throughout April and May. After that we will receive the H-1B lotteryloser petitions. Traditionally if you donot receive a winner receipt notice by June 1, you have probably lost the H-1Blottery.
MAY 2018 VISA BULLETIN: NEWS AND ANALYSIS
April 12, 2018
The Department of State has just issued the May 2018 Visa Bulletin. This is the eighth Visa Bulletin of Fiscal Year 2018. This blog post analyzes this month's Visa Bulletin.
May 2018 Visa Bulletin
Table A: Final Action Dates -- Applications with these dates may be approved for their Green Card (Permanent Residency card) or Immigrant Visa appointment.
EB Class | All Other | CHINA | INDIA | MEXICO | PHIL'PNES |
EB-1 | C | 01JAN12 | 01JAN12 | C | C |
EB-2 | C | 01SEP14 | 22DEC08 | C | C |
EB-3 | C | 01JUN15 | 01MAY08 | C | 01JAN17 |
Table B: Dates for Filing -- The DOS may work on applications with these dates. But the Visa cannot be approved until the date is current per Table A.
EB Class | All Other | CHINA | INDIA | MEXICO | PHIL'PNES |
EB-1 | C | C | C | C | C |
EB-2 | C | 01FEB15 | 01APR09 | C | C |
EB-3 | C | 01JAN16 | 01SEP08 | C | 01JUL17 |
MU Law Analysis (all references are to Table A unless noted)
All Other: The EB-2 has been current for many years. The EB-3 is also current and is expected to remain current for the foreseeable future.
China (mainland-born): As with all categories this month, the movements were minor or nonexistent. It would not surprise MU if the Chinese numbers stayed steady through the fiscal year. China EB-2 is a better bet to progress than EB-3, although it remains doubtful that EB-2 progresses ahead of EB-3.
India: India EB-3 had the most promising move of all EB categories, progressing from February to May 2008, which marks two consecutive months of great progress. This likely reflects the fact that many older Indian EB-3s have either dropped out of the system or have upgraded to EB-2. For a long time, MU Law has believed that India EB-3 would move much faster, once India EB-3 moved past 2007.
Mexico: Mirrors All Other in analysis.
Philippines: Phils EB-3 stayed steady, which is not surprising considering the enormous progressions of the last few years. The Phils EB-3 number will probably continue to only move slowly, reflecting the large numbers of Philippine RN EB-3 petitions that were filed in 2016-2018.
H-1B CAP 2018 HAS BEEN REACHED
April 6, 2018
USCIS today that it has received morethan 85,000-1B cap-subject petitions They did not specify how many H-1Bcap-subject petitions were received. Weexpect to know the overage within the next few weeks. Last year, the announcement happened on April17.
USCIS will continue to accept andprocess petitions that are otherwise exempt from the cap. Petitions filed onbehalf of current H-1B workers who have been counted previously against the cap.USCIS will continue to accept and process petitions filed to:
- Extend the amount of time a currentH-1B worker may remain in the United States;
- Change the terms of employment forcurrent H-1B workers;
- Amend the H-1B petition to notifythe USCIS of the filing of a new LCA and/or geographic change in employment;
- Allow current H-1B workers tochange employers; and
- Allow current H-1B workers to workconcurrently in a second, contemporaneous part-time H-1B position.