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Advantages For Tracking All Foreign National Employees

Posted October 2, 2018Matthew MeltzerArticles

Meltzer Hellrung tracks the immigration status of all foreign national employees. We always notify clients of when the immigration status of foreign national employees are expiring. We generally provide at least six months notice of an expiring visa status. Similarly, we help clients make determinations of when to sponsor employees for green cards.

We encourage our clients to track the status of all of their foreign national employees, including:

  • employees sponsored for visas by the company
  • employees currently in F-1 OPT or CPT status
  • employees with independent work authorization such as EAD's based on L-2, DACA, E-2, or pending asylum status

By tracking all of your employees we can help you avoid any lapse in work authorization. We can also help craft strategies for individual employees and your entire company.

For more information on tracking the status of your foreign national employees please contact your Meltzer Hellrung attorney today.

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Diversity Lottery for FY 2020 will open on October 3, 2018

Posted October 1, 2018Cynthia S. CoulangeGreen Card

Every year the Department of State administers a Diversity Immigrant Visa lottery for individuals from countries with historically low rates of immigration to the United States. Fifty-thousand visas will be available for fiscal year 2020.  There is no cost associated with registering for the lottery.

The following countries are not eligible to apply because nationals of these countries had more than 50,000 people immigrate to the United States in the previous five years:

  • Bangladesh, Brazil, Canada, China (mainland-born), Colombia, Dominican Republic, El Salvador, Haiti, India, Jamaica, Mexico, Nigeria, Pakistan, Peru, Philippines, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam.
  • Individuals born in Honk Kong SAR, Macau SAR, and Taiwan are eligible.

Applicants may submit entries beginning Noon EST October 3, 2018 until Noon EST November 6, 2018. Entries should be submitted online at dvlottery.state.gov. Only one entry per person is permitted during each registration period. Individuals with more than one entry will be disqualified.

The Department of State will randomly select individuals through a computer process and the results of the lottery will be available online beginning May 7, 2019 through September 30, 2020.

We encourage nationals from eligible countries to apply for the lottery as an alternative or in conjunction to employment-based immigrant visa options.

As, always, if you have any questions regarding the Diversity Lottery, please reach out to your designated Meltzer Hellrung attorney. 

 

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USCIS Begins Implementing New NTA Policy on October 1st

Posted September 26, 2018Matthew MeltzerArticles

We previously wrote about the new Notice to Appear (NTA) policy the USCIS published on June 28th. On Monday, October 1st, the USCIS will begin implementing the new policy, but will limit that implementation to I-485 and I-539 applications.

In an email published on September 26th, USCIS stated:

USCIS will send denial letters for status-impacting applications that ensures benefit seekers are provided adequate notice when an application for a benefit is denied. If applicants are no longer in a period of authorized stay, and do not depart the United States, USCIS may issue an NTA. USCIS will provide details on how applicants can review information regarding their period of authorized stay, check travel compliance, or validate departure from the United States.

The June 2018 NTA Policy Memo will not be implemented with respect to employment-based petitions and humanitarian applications and petitions at this time. Existing guidance for these case types will remain in effect.

USCIS will continue to prioritize cases of individuals with criminal records, fraud, or national security concerns. There has been no change to the current processes for issuing NTAs on these case types, and USCIS will continue to use its discretion in issuing NTAs for these cases.

Based on the language of this email, we do not expect that dependent cases filed with I-539, such as H-4, L-2, and TD petitions will be impacted by this policy at this time. We expect that the I-539 denials will target F-1 and B-2 applications.

We are relieved to see that the USCIS will not be mailing NTA letters contemporaneously with denial notices. Foreign nationals will be given some period of time to depart the US prior to the issuance of a Notice to Appear.

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Options for Employees with Pending H-1B Cap-Lottery Petitions in “Cap-Gap”

Posted September 21, 2018Karen GillespieArticles, H-1B

Each year in the H-1B Cap Lottery filings there are some individuals who have valid F-1 status on April 1 when the petition is filed but whose status is set to expire between filing and the anticipated start of their H-1B visa on October 1. These individuals are allowed to remain inside the U.S. and continue working with the issuance of an extended Form I-20 from their university/college. This extension is referred to as “Cap-Gap.” Unfortunately, this extension expires on September 30, 2018, and if their pending H-1B is not approved then those individuals will have to stop working as of Oct. 1, 2018, unless some other form of underlying work authorization is available.

Employers should monitor the expiration date of EADs of F-1 OPT students whose employment authorization will be expiring prior to February 19, 2019 when premium processing resumes.  These employees are also at risk of not having their H-1Bs approved prior to the expiration date of their EAD cards.

This uncertainty leaves many employers and employees with questions:

Can Premium Processing be requested?

No. Premium processing has been suspended for H-1B Cap Lottery petitions since April and the USCIS announced that the ban was extended through at least February 19, 2019.

Is there any other way to expedite the case?

Yes, the USCIS allows any case to request expedited service. The USCIS reviews each request on a case-by-case basis and petitioners must prove that at least one of the expedite criteria is met:

  • Severe financial loss to company or ​person​;​
  • Emergency situation;​
  • Humanitarian reasons;​
  • Nonprofit organization whose request is in furtherance of the cultural and social interests of the United States​;​
  • Department of Defense or ​n​ational ​i​nterest ​s​ituation (These particular expedite requests must come from an official U.S. government entity and state that delay will be detrimental to the government.);​
  • USCIS error; or​
  • Compelling interest of USCIS.​

What happens after September 30, 2018 to these employees?

These individuals must stop working unless they have a secondary underlying work authorization. However, they may remain inside the US based on the pending change of status petition.

What is the employee must travel outside the U.S.?

The employee may exit the US without issue however they will not be able to re-enter the U.S. until their H-1B is approved and they attend an interview at a U.S. consulate to obtain a U.S. visa stamp. The employee may work for their employer abroad as long as doing so is compliant with the laws of their country of citizenship or residence.

Potential Accrual of Unlawful Presence

Based on the USCIS policy memo issues on August 9, 2018, the USCIS regards any violation of F-1 status as starting the clock on unlawful presence. Some individuals may have already started accruing unlawful presence and should consult an attorney if they believe that may be the case.

As always, the attorneys at Meltzer Hellrung are available to discuss any issues with employment and/or travel for individuals with pending H-1B petitions.

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USCIS Policy Memo on Issuing Denials Without RFEs is in Effect

Posted September 19, 2018Kristen KellarArticles

In July 2018, USCIS published a new policy memorandum giving adjudicators discretion to deny cases without first issuing a Request for Evidence or Notice of Intent to Deny.  Please see our recent blog post on the policy memo.

The memo is now in effect and aims to discourage skeletal petitions that lack supporting evidence.  The policy will not dramatically change how Meltzer Hellrung LLC practices, but we may push back on filing petitions that do not include much supporting evidence. If you have any questions about the memo or required evidence for your cases, please reach out to your designated Meltzer Hellurng LLC attorney.

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