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Archive by Year: 2019

H and L Visa Adjudications in China Restricted to Three Locations

Posted February 4, 2019Karen GillespieArticles

The Department of State announced that as of March 1, 2019, H and L visa interviews will only be conducted the following locations:

  • U.S. Embassy in Beijing
  • U.S. Consulate in Guangzhou
  • U.S. Consulate in Shanghai

This change reduces the number of available consulates for H and L visa interviews from five to three locations. The Department of State has implemented similar consolidations in other countries and this action appears to be part of a Department project to streamline consular operations. If examples from prior consolidations, such as in India, are any indicator then applicants seeking new or renewed H or L visas in China should expect longer wait times for an appointment.

We urge applicants to plan ahead when traveling internationally if a new or extended visa needs to be obtained regardless of country of origin, but this is now especially true for Chinese citizens. Such planning includes booking a consular appointment prior to exiting the U.S. and allowing at least 3 business days after your interview appointment for your visa to be processed. In emergency cases, where the wait time in China may be prohibitively long, please reach out to your Meltzer Hellrung attorney so that we can explore consular options in other countries or request expedited service if possible. Such options vary by individual and would be assessed at the time by your attorney.

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USCIS To Implement New Regulations for H-1B Cap Lottery

Posted January 31, 2019H-1B

USCIS has posted a final rule changing the H-1B lottery process. Effective in April 2019 (for the 2020 fiscal year), USCIS will reverse the order of the H-1B cap lottery. First, USCIS will draw petitions for the general bachelor's cap, where 65,000 new visas are to be granted. Second, USCIS will draw petition's for the master's cap, where 20,000 additional visas are to be granted to individuals who hold master's or other advanced degrees from US universities.

This change is expected to increase the odds that individuals who hold advanced degrees will be selected in the H-1B lottery. USCIS expects that this change in process may result in a 16% increase in likelihood that an individual with an advanced degree will have a petition selected in the lottery.

USCIS will also implement an H-1B lottery online registration process, but will delay this implementation until 2020. The electronic registration process will require employers to submit an electronic registration for each petition first. The USCIS will then hold the lottery to determine which petitions are selected and invite employers to submit complete H-1B petitions subsequently. Additional details on this program will be released in the future, but USCIS will provide at least 90 days to submit complete petitions after the lottery is completed.

Meltzer Hellrung will continue to process H-1B petitions as it typically has in 2019. We will monitor the proposed changes to the registration, lottery, and submission process, to advise clients on how best to proceed in 2020 and beyond.

For more information on filing H-1B cap petitions please contact your Meltzer Hellrung attorney.

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E-Verify After Government Shutdown

Posted January 28, 2019Articles

During the 35 day federal government shutdown E-Verify was not available to employers. Employers have until February 11th to enter cases for all hires made during the shutdown period.

USCIS instructed that employers use the hire date from the employee's Form I-9 when creating an E-Verify case. If the case creation date is more than three days following the worker's start date, select "Other" from the drop-down list asking for an explanation and enter "E-Verify Not Available" as the reason.

For further information on handling tentative nonconfirmations please see USCIS guidance.

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Premium Processing Service Resumes for H-1B Cap Cases Filed in 2018

Posted January 27, 2019H-1B

USCIS will begin accepting premium processing requests for H-1B cap petitions filed in April 2018 for the fiscal year 2019 cap. USCIS will resume accepting premium processing requests on January 28th.

Premium processing service guarantees that USCIS will review a petition within 15 calendar days of receipt by the USCIS. Premium processing does not guarantee a final decision, as USCIS can issue a request for evidence. Similarly, a premium processing request can be submitted with a response to a request for evidence.

For further information, please contact your Meltzer Hellrung attorney.

 

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DACA Beneficiaries May be Eligible for an H-1B

Posted January 25, 2019H-1B

Due to the uncertainty of DACA, employers should consider other nonimmigrant options for certain employee Dreamers, in particular sponsorship for H-1B. The Supreme Court appears unlikely to hear the case on Deferred Action for Childhood Arrivals (DACA) this term. On February 15, 2019 the Supreme Court will meet again to decide which cases it will hear in October. Even if the court accepts to hear the case in October, the decision regarding the program will likely not be announced until 2020. However, given the long-term uncertainty surrounding the program we encourage employers to be proactive in considering all options available to DACA employees.  

H-1B status could be available to some DACA beneficiaries (“Dreamers”) if they meet eligibility for the visa. Namely, employees must have earned at least a bachelor’s degree, have a job offer, and have less than 6 months of unlawful presence (since their last entry). In addition, in order to eventually enter the US in H-1B status, DACA beneficiaries must have also entered the country legally, using a tourist visa or advance parole.   

The job offer must require a bachelor’s degree in a particular field and that degree requirement must be common to the job. Most Dreamers who might be eligible for the H-1B must have also had DACA by the time they were 18.5 years old. All Dreamers have unauthorized presence, which is different from unlawful presence. Unlawful presence accrues as soon as the Dreamer turns 18 years old, which is why if they were 18.5 years old or older when they obtained DACA, they are ineligible for an H-1B. Eligible Dreamers must also note that they will not be able to change their status. Dreamers are not eligible to change status because they do not have a status. This means that if the H-1B is approved, the Dreamer will have to consular process and enter the U.S. with his/her H-1B visa. 

All Dreamers should renew their DACA before February 15, 2019. Unfortunately, USCIS is not accepting new applicants for DACA at this time. If you have any questions, please reach out to any of the Meltzer Hellrung attorneys. 

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