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Proposed Changes to H-1B Cap Lottery

Posted December 3, 2018H-1B, Monthly Newsletters

In accordance with the Buy American and Hire American Executive Order, DHS announced on November 30, 2018 a proposal that would require petitioner’s seeking to file H-1B cap-subject petitions to first electronically register with USCIS during a designed registration period. USCIS would also reverse the order by which USCIS selects H-1B petitions, increasing the number of beneficiaries with a master’s or higher degree from a U.S. institution of higher education to be selected for an H-1B cap first.

Currently, once the H-1B cap and advanced degree exemption petitions are met, the advanced degree exemption is selected prior to the H-1B cap. Once there are sufficient petitions selected for the H-1B cap, USCIS would select the petitions towards the advanced degree exemption. This would increase the chances that beneficiaries with a master’s or higher degree from a U.S institution of higher education would be selected under the H-1B cap, and that the H-1B visa would be awarded to the highest-paid and most-skilled beneficiaries. Further, the proposed process would increase the number of selected H-1B beneficiaries who hold a U.S. institution master’s degree or higher by 16 percent.

Due to the expected technical challenges to this proposed H-1B registration process and new electronic system, USCIS could temporarily suspend the registration process during any fiscal year. This suspension would allow USCIS to up-front delay the implementation of the H-1B registration process past the fiscal year 2020 cap season. Yet, USCIS expects that this electronic system would reduce overall costs for petitioners and create a more efficient and cost-effective H-1B cap petition process for USCIS. This would also help reduce wait times for cap selection notifications, as well as limit the filings of H-1B cap-subject petitions to the beneficiary named on the original selected registration, which would protect the integrity of this registration system.

We do not yet know the procedures for registration and how long USCIS will provide to submit complete petitions selected in the lottery. We will continue to monitor the situation and advise clients appropriately.

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USCIS Clarifies L-1 Foreign Employment Requirement

Posted November 28, 2018Articles

On November 15, 2018, USCIS issued a policy memorandum entitled "Satisfying the L-1 1-Year Foreign Employment Requirement," which clarifies how USCIS calculates the one-year foreign employment requirement. In order to qualify for L-1 status, beneficiaries must have one continuous year of qualifying employment outside of the United States within the preceding three years.

Per the policy memorandum, brief trips to the U.S. for business or pleasure will accrual of the continuous year of employment abroad. The example USCIS provides is "if the qualifying foreign entity began to employ the beneficiary on January 1, 2016, and the beneficiary made brief trips to the United States that year for a total of 60 days, the beneficiary would need to accrue at least an additional 60 days of qualifying employment abroad after January 1, 2017, in order to meet the one-year foreign employment requirement."

The policy memorandum also provides the following guidance on when the three-year period for determining whether the one year requirement can be adjusted. 

  • Time spent working for the qualifying organization as a principal beneficiary of an employment-based non-immigrant petition or application in the United states results in an adjustment of the three year clock.
  • Periods of time working for the qualifying organization in the United States as a dependent or student do not result in an adjustment of the three-year period.
  • Periods of time spent in the U.S. not working or working for an unrelated employer do not result in an adjustment of the three-year period.

If you have any questions about timing or other requirements for an L-1 petition, please reach out to your designated Meltzer Hellrung LLC attorney.

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Holiday Travel Tips for Foreign Nationals

Posted November 14, 2018Articles

Holiday Travel Tips for Foreign Nationals The holidays are quickly approaching, and for foreign nationals planning to travel abroad now is a great time to ensure that all immigration documents are in order.

Pending Cases with USCIS

Those with a currently pending case with USCIS should consult with their or their employer’s immigration attorney to determine any travel risks.

Individuals with pending nonimmigrant cases for change of status or extension of status generally should not travel abroad until the case is adjudicated. Leaving the U.S. while the case is still pending may result in the case being approved for consular processing thus requiring the individual to leave the U.S., obtain a visa stamp, and re-enter in order to “activate” the new approval.

Those with pending adjustment of status cases may need to have a valid advanced parole document to re-enter the U.S. Individuals on dual intent visas such as H-1B, H-4, L-1, and L-2 can return to the U.S. with their valid visa.

Visa Stamps

In general, nonimmigrants with an expired visa stamp will need to obtain a new one before returning to the U.S. There is an exception for those with a valid I-94 travelling only to Canada or Mexico for fewer than 30 days, who meet certain criteria, through a process called automatic revalidation. Citizens from Iran, Sudan, or Syria with an expired visa, as well as those who have applied and are waiting for a visa stamp, or had a visa denied, will need to obtain a valid visa stamp regardless of the length of stay in Canada or Mexico.

Those travelling to other countries or who plan to stay in Canada or Mexico for more than 30 days, should plan to obtain a new visa stamp before returning to the U.S.

It is also important that the visa stamp be valid for the correct visa category. For example, if an individual changed from F-1 to H-1B on October 1 and has not yet received a new visa stamp, that person will need a new H-1B visa stamp to re-enter the country.

Appointments for visa stamping should be made as early as possible as appointments maybe be limited due to local and U.S. holidays. Each U.S. Consulate lists its holiday closures on its website, and estimate visa appointment and processing wait times can be found on the U.S. Department of State’s website.

Citizens of Canada generally do not need a visa stamp.

Passport Validity

Passports should be valid for the period of intended stay. If entering with a passport that expires before end date on the I-797 approval notice, U.S. Customs and Border Protection may shorten the new I-94 to match the passport expiration date. Individuals from certain countries must have passports valid for at least six months beyond the period of the intended stay, however, most countries are exempt from this requirement.

Re-entering the United States

When returning to the U.S. on a nonimmigrant status we suggest carrying the following documents:

  • Current passport
  • Current I-797 approval notice
  • Two most recent paychecks
  • Signed employment verification letter confirming current position, wage, etc.

Additionally, individuals should be ready to answer basic questions posed by U.S. customs and immigration officials, such as:

  • What is the name of your employer?
  • What is your job title?
  • Where do you work?
  • How long do you expect to stay in the United States?

Upon returning to the U.S., foreign nationals should take a moment to obtain their most recent I-94 so they are aware of their status expiration date. Each person should also review their I-94 record for consistency with other immigration records. If there is an inconsistency please contact us immediately for advice on correcting the mistake.

As always, if you or your employees have any questions about travelling during the holidays or at other times during the year, reach out to your designated Meltzer Hellrung attorney.

We wish a happy holiday season to you and your families.  

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TPS Maintained and Extended for Certain Countries

Posted November 8, 2018Articles

The Trump administration has sought to end long-established protections for certain individuals from Sudan, Nicaragua, El Salvador, and Haiti. The Department of Homeland Security (DHS) published a Federal Register notice that temporarily preserves Temporary Protected Status (TPS) designations previously scheduled by DHS to lose TPS designation over the next year. 

The notice was published to comply with an early October preliminary injunction issued against DHS by the U.S. District Court for the Northern District of California.  The injunction requires DHS to preserve TPS designations for the above listed countries pending litigation on the issue of whether DHS acted lawfully in terminating their TPS status.  

The agency is simultaneously appealing the injunction order to a higher court, seeking to fulfill its plan to terminate the TPS designations in the shorter term. In the meantime, key provisions of the DHS plan, effective immediately, are as follows:

Temporary extensions for Sudan and Nicaragua

  • TPS Employment Authorization Documents (EADs), Forms I-797 Approval Notices, and Forms I-94 for nationals of Sudan and Nicaragua are automatically extended through April 2, 2019, provided they meet certain registration and documentary requirements set forth in the Federal Register notice.
  • USCIS will issue EADs valid through April 2, 2019 to TPS beneficiaries from Sudan and Nicaragua who have applied for an EAD, and have been approved for recent re-registration or who have a pending re-registration application with USCIS.

Haiti and El Salvador expiration dates remain in place for now

  • TPS employment authorization documents for Haiti and El Salvador are unaffected by the new USCIS notice, as these designations are set to expire after April, 2, 2019.
  • TPS expiration for El Salvador will remain at September 9, 2019.
  • TPS expiration for Haiti will remain at July 22, 2019.

TPS termination dates for Nepal and Honduras are not affected by the preliminary injunction or today’s Federal Register notice, as the countries are not included in the Ramos case.  TPS for Nepal is set to expire on June 24, 2019 and Honduras on January 5, 2020.

Impact on employers and foreign nationals

I-9 employment eligibility verification:  Sudanese and Nicaraguan TPS beneficiaries eligible for automatic EAD extensions may complete or update their I-9 employment eligibility records by providing an employer with a copy of today’s Federal Register notice, an eligible expiring or expired TPS EAD, and any other required I-9 documents.  The Federal Register notice provides specific instructions on proper completion of an I-9 form to reflect an automatically extended TPS EAD.

New EADs: While it is not necessary for Sudanese and Nicaraguan TPS nationals to obtain a new EAD in order to benefit from the automatic EAD extension, they may do so by filing a Form I-765 (Application for Employment Authorization) with USCIS.

Pending TPS and/or EAD applications: If a pending application is approved, approval notices and document expiration dates will reflect the Federal Register’s automatic extension dates.  There is no need for a foreign national to file either application again in order to benefit from the extension.

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USCIS Expands Information Services Modernization Program

Posted October 30, 2018Kristen KellarArticles

On October 30, 2018, USCIS announced that it is expanding its Information Services Modernization Program that was piloted in select cities earlier this year. The program ends self-scheduling of InfoPass appointments in certain cities and favors contacting the USCIS National Customer Service Center to have issues resolved. If a Tier 1 officer is unable to address the request over the phone, the officer will escalate the call to a Tier 2 officer who will determine if an InfoPass appointment is necessary and help schedule an appointment. The purpose of the pilot program is to cut down on the number of InfoPass appointments made for inquiries that could be addressed by the National Customer Service Center. Appointments requested for issues other than document services and emergencies may be refused by USCIS.

Beginning on November 13, 2018, the Detroit Field Office and five offices in the Los Angeles District will implement the Information Services Modernization Program. The program will later expand to the Newark, Great Lakes, and San Francisco districts by the end of the year. The program is already in effect in the the following cities: Hartford, CT; El Paso, TX; Jacksonville, FL; Sacramento, CA; and San Francisco, CA. USCIS expects implementation by all field offices by Fall 2019.

Individuals living in the areas covered by the program can schedule an appointment by calling the USCIS National Customer Service Center at 1 (800) 375-5283. The appointment can be requested with the Tier 1 officer, who will then escalate the call to a Tier 2 officer to confirm that an InfoPass appointment is necessary and appropriate. Appointments can also be requested by contacting USCIS online at Appointments requested for issues other than document services and emergencies may be refused by USCIS.  

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