On Dec. 6, 2019, U.S. Citizenship and Immigration Services (USCIS) announced that the initial registration period for the H-1B cap season 2021 will begin on March 1, 2020 and end on March 20, 2020. Once selections have been announced, those selected will have 90 days to submit the petitions.

H-1B electronic registration requirement

immigration h-1B visa registration

On Jan.

In February of this year, USCIS announced that the proposed rule to eliminate the ability of foreign nationals in H-4 status to apply for an Employment Authorization Document (EAD) was sent to the Office of Management and Budget (OMB) for final approval. Five months later, OMB has still not released the proposed rule for publication. The delay likely reflects substantive issues and is more than mere bureaucratic delay. In the meantime, the H-4 EAD is alive and well. The proposed rule must still clear several administrative hurdles before it becomes effective and can be implemented.
Continue Reading Myths, rumors and clarification on the status of the H-4 EAD

On Friday, May 3, a Federal District Judge in North Carolina enjoined the Trump Administration’s effort to change the immigration policy on “unlawful presence” as it is applied to foreign students, in Guilford College et al. v. McAleenan, et. a.l. The concept of unlawful presence was first introduced into the immigration laws in 1996 to impose a penalty on those who remain in the U.S. after their authorized period of stay expires. This penalty, a bar, known as the “3/10-year bar,” is imposed from the day the foreign national departs the U.S., preventing their return for either 3 or 10 years, depending on whether they remained more than 180 days or 365 days after their authorization expired.

The key to imposing this bar, however, depends on the calculation of the date the authorized stay expired. For foreign students, who are admitted for the duration of status (d/s), there is no certain date by which they are told they must depart the United States. Therefore, in 1997 Legacy INS announced a policy that students would be deemed unlawfully present only when an immigration officer or Immigration Judge made a determination that they had violated their status. In the event such a determination was made, the student was informed of the decision and then given 180 days to depart the U.S. before the 3- or 10-year bar would be imposed.
Continue Reading Court ruling puts administration’s immigration policy on hold

Foreign nationals, especially spouses and dependents of nonimmigrant workers and students, are warned that U.S. Citizenship and Immigration Services (USCIS) is revising the Form I-539, Application to Extend/Change Nonimmigrant Status. This form is used by nonimmigrants to extend their stay in the U.S. or change to another nonimmigrant status, as well as for F and M students applying for reinstatement. The new form was issued on March 11, 2019 and after March 21, 2019, USCIS will accept only the newly revised version of the form, with an edition date of Feb. 4, 2019. All other versions of the form, including the current one dated Dec. 23, 2016, will be rejected. Additionally a new Form I-539A, Supplemental Information for Application to Extend/Change Nonimmigrant Status, generally used to extend or change status of dependent children, has been being revised and published.
Continue Reading New forms I-539 and I-539A, and additional fees, required on March 21, 2019

Beginning in the summer of 2017, employers began to see an increase in Requests for Evidence (RFE) from USCIS on H-1B petitions alleging that the occupation was not a specialty occupation because the employer assigned a level 1 wage. Two recent decisions from the Administrative Appeals Office (AAO) indicate that this may no longer be an concern.

Some background to this issue is helpful. The H-1B visa is available for foreign nationals who will be performing services in a specialty occupation. The specialty occupation is a field that requires a specific educational background as a minimum qualification to perform the duties of the position. The statute also imposes an obligation to pay the “prevailing wage” or the actual wage, whichever is higher, as a measure to protect U.S. workers against unfair competition from foreign workers willing (or coerced) to work for substandard wages. The employer may calculate the prevailing wage by using the data provided by the Bureau of Labor Statistics for occupations and locations nationwide. The Department of Labor has issued guidance on how to determine which of the four wage levels provided in the data should be selected, based upon the normal requirements for the occupation compared to the employer’s requirements for the specific position.Continue Reading USCIS Administrative Appeals Office issues important non-precedent decisions on wage level determinations for H-1B petitions

The third time is the charm for the Trump Administration, for now. On Monday, Dec 4, 2017, the U.S. Supreme Court issued an order allowing President Trump’s third attempt at a travel ban to take full effect while the issue of its constitutionality is litigated in the circuit courts. This decision has the practical effect of lifting hard-fought blocks against the controversial ban.
Continue Reading SCOTUS allows travel ban 3.0 to take effect

U.S. Citizenship and Immigration Services (USCIS) recently posted notice advising employers of a scam operation requesting I-9 forms. USCIS, as well as any other investigating government agency, will never request I-9 forms by email. There are reports of recent scam operations that appear to come from a government email address requesting I-9 forms for recently

United States Citizenship and Immigration Services (USCIS) is again releasing a new and updated version of Form I-9, the Employment Eligibility Verification document. Since November 1986, all U.S. employers have been required to complete and retain the I-9 for new employees. The most recent version of the form went into effect on Jan. 22, 2017, but, for some unknown reason, USCIS is now issuing another version. This new version will be mandatory as of Sept. 18, 2017. The easiest way to identify the new form is by the date (07/17/17) noted in the bottom left corner; the prior version was dated 11/14/2016.

A couple of points to bear in mind:

  1. The new I-9 must be used for any new employees hired on or after Sept. 18, 2017. There is no need to complete the new form for any current employees, and employers should continue to follow existing storage and retention rules for all of their previously completed Forms I-9.
  2. The new form has the same expiration date as the prior version—08/31/2019—so employers should be careful to use the proper version of the form with 07/17/17 noted in the bottom left corner.

Continue Reading Employer alert: Revised I-9 form required beginning Sept. 18, 2017

President Trump issued yet another executive order addressing immigration issues on Tuesday, April 18, 2017. This order, entitled “Buy American and Hire American,” addresses federal procurement policies and reiterates the established policy to purchase goods manufactured in the United States. The order also addresses the H-1B visa. While it does not change any law, regulation or policy, it comes only one day after USCIS once again announced that 199,000 H-1B petitions were received during the first five business days of April to overwhelm the 85,000 limit on visas for the next fiscal year.

Substantively, the executive order merely orders the federal agencies that administer the H-1B program to enforce all laws related to the H-1B visa, something the federal government is already required to do. In addition, the President has ordered these agencies to examine how the program can be improved to protect American jobs. However, the President clearly intends this executive order to focus attention on the H-1B visa. This was made clear in the “Gaggle[1] published on the White House website earlier the same day. This “Gaggle,” a transcript of a conversation between an anonymous “Senior Administration Official” and reporters aboard Air Force One, was published on the official White House website. It is not clear how a document published on this website is “not for attribution” or aligns with President Trump’s criticism of anonymous sources, but nevertheless, it is a discussion of the executive order and seeks to provide some insight into the thinking behind the order.Continue Reading President Trump’s executive order on H-1B visas