USCIS WILL NO LONGER ACCEPT PPS FOR H-1Bs EXCEPT EXTENSIONS, CAP EXEMPT INSTITUTIONS

In an unexpected move (although all-too-common for an increasingly erratic agency), the USCIS will no longer accept Premium Processing Service (PPS) for all H-1Bs, except for H-1B extensions with the same employer or H-1Bs for cap-exempt institutions, such as Universities or research organizations.

Effective September 11, 2018, PPS will not be available for H-1B cap petitions and H-1B amendments.  The ban on PPS will continue until February 19, 2019. 

The justification for the ban on PPS is to reduce overall H-1B processing times.  

If you are asking yourself how eliminating a fee-based premium processing service will reduce processing times, you are not alone.  The PPS is supposed to pay for itself.  This is yet another example of an agency that cannot get out of its own way.

USCIS BACKTRACKS: STEM OPT EMPLOYMENT AT THIRD PARTY WORKSITES IS NOW PERMITTED

USCIS has updated its Optional Practical Training Extension for STEM Students (STEM OPT) webpage indicating STEM OPT participants may engage in training experience at third party worksites as long as the all of the training obligations are met.  The employer must maintain a bona fide employer/employee relationship with the student.  Previously the USCIS had said that STEM OPTs could not work at third-party locations. 

Any material changes in the student’s employment must be reported to the Designated School Official (DSO) within 5-10 business days.  These changes include any modifications to the training listed on the I-983, a change in the employer’s name or address, and termination of the student’s employment.

The USCIS’ backtracking was likely a result of a lawsuit filed in federal court.  That lawsuit, ITServe Alliance v. Nielsen, was filed by Attorney Jon Wasden.  Jon, who is a friend of MU Law, previously worked for the USCIS’ AAO Office.  He has filed several lawsuits on behalf of H-1B employees and H-1B employers.  If you have an egregious denial decision and would like to have Jon review your case, please contact him or contact MU and we an put you in touch with him.

DO NOT LET YOUR VISA SCREEN EXPIRE

The USCIS requires Healthcare Worker Certificates, sometimes called Visa Screens are required for foreign-born healthcare workers who will be employed in the US in the following professions:

• ·         Nurses (including LPNs, vocational nurses, and RNs);
• ·         Physical Therapists;
• ·         Occupational Therapists;
• ·         Speech-Language Pathologists and Audiologists;
• ·         Medical Technologists or Clinical Laboratory Scientists;
• ·         Medical Technicians or Clinical Laboratory Technicians; and
• ·         Physician Assistants.

A valid Visa Screen must be provided to the USCIS when the healthcare worker applies for entrance to the US, change of status, extension of status, or adjustment of status (a green card application).  In light of the USCIS’s new policies regarding the issuance of Requests for Evidence (RFE), Notice of Intent to Deny (NOID), and Notices to Appear (NTA), healthcare workers are advised to not let their Visa Screens expire. 

In the past, if an H-1B extension was filed without a valid Visa Screen, the USCIS would generally send an RFE to request it.  Under the new USCIS new policies, the lack of a valid Visa Screen would be grounds for immediate denial.  Further, with the new NTA policy, if the healthcare worker’s I-94 has expired at the time of the denial, the worker could be put into deportation proceedings immediately.

MU strongly advises healthcare workers to timely renew their Visa Screens so that they can continue to maintain their immigration status and their ability to work in the US.

SEPTEMBER 2018 VISA BULLETIN: DON'T PANIC! ALL WILL BE FIXED ON OCT 1

 DON'T PANIC ABOUT THIS VISA BULLETIN!

We invite you to read our FAQ on August and September Visa Bulletins

The Department of State has just issued the September 2018 Visa Bulletin.  This is the final Visa Bulletin of Fiscal Year 2018.  This blog post analyzes this month's Visa Bulletin.  

September 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	01JUN16	01JAN12	01JAN12	01JUN16	01JUN16
EB-2	01JAN13	01JAN13	01JAN07	01JAN13	01JAN13
EB-3	01NOV16	01JUL14	01JAN03	01NOV16	01NOV16

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	01APR15	22MAY09	C	C
EB-3	C	01JAN16	01MAY09	C	01JUL17

MU Law Analysis (all references are to Table A unless noted)

This Visa Bulletin retrogressed all categories several years.  This is the Department of State's signal that all employment-based visas have been used for this fiscal year.  This is normal and happen at the end of each fiscal year.  The new fiscal year starts on October 1, 2018.  This Visa Bulletin includes a note confirming that "the implementation of the above mentioned dates will only be temporary and in October, the first month of fiscal year 2019, the final action dates will be returned to those established for August."

Accordingly, things will return to normal on October 1, 2018.

USCIS CREATES NEW NTA POLICY

On June 28, 2018 the USCIS issued a memo regarding Notices to Appear (NTA) in a wider range of cases.  On July 30, 2018, the USCIS indicated this memo’s implementation would be delayed until further guidance regarding its administration can be issued.

Under the new memo, USCIS Officers are now mandated to issue (NTAs for cases where the individual is removable because there is evidence of fraud, criminal activity, or where an applicant is denied an immigration benefit and is unlawfully present in the US.  An NTA initiates deportation proceedings and instructs the foreign national to appear before an Immigration Judge.  Even if issuance of the NTA is erroneous, there is a five year ban to re-entering the US if the foreign national departs the US while deportation proceedings are on-going.  NTAs will be sent to the employee’s last known address and not to the H-1B attorney.

Unlawful presence accrues if the previous I-94 card has expired from the date of denial of the new immigration petition forward.  For example, an H-1B worker is considered unlawfully present when the request for an H-1B extension is denied and the prior H-1B has already expired.

o   180 days to 364 days of unlawful presence results in 3 year bar of return to US

o   365 days+ results in 10 year bar of return to the US

This would most commonly apply to cases where the foreign national’s I-94 has already expired and their extension case denied.  For example: the employee’s I-94 expires on May 1; extension filed February 1, but is pending for 9 months until November.  In November the H-1B extension is denied.  The employee now has an expired I-94 card and is deportable.

Appealing the H-1B denial is generally not advised as the Appeals Office has a 90%+ rate of upholding the USCIS denials and a pending appeal does not stop accrual of unlawful presence or protect the worker from deportation. 

MU recommends the following in light of this new policy:

o   File extension petitions as early as possible

o   Use premium processing service to ensure a quick decision

o   Employees who are porting from one H-1B employer to the next may want to wait until the new H-1B case is approved to resign and begin work with the new employer

o   F-1 to H-1B applicants should maintain their underlying OPT, including STEM OPT, until H-1B approval

o   Those applying for green card through adjustment of status (AOS) should maintain their underlying status until AOS is approved

o   Foreign nationals should keep their address up-to-date with USCIS, even when leaving the US

Finally, this policy is expected take the focus of USCIS from adjudicating petitions and to create lengthier delays.  MU will alert clients once the memo has been implemented.

USCIS ISSUES NEW MEMO ON RFE AND NOID ISSUANCE

On July 13, 2018 the USCIS issued a memo indicates USCIS adjudicators now have full discretion to deny applications, petitions, and requests without first issuing an Request for Evidence (RFE) or Notice of Intent to Deny (NOID), when appropriate. 

Applicants must include all required initial evidence, as listed in operating procedures, form instructions, or regulations with their immigration petition or application.  In some cases a second RFE or NOID may be issued.  Reuters reports RFE and NOID issuance is up significantly in the last year.

Apart from RFEs, Officers have the discretion to validate assertions or corroborate evidence and information submitted with an immigration application by consulting USCIS or other governmental files, systems, and databases, or by obtaining publically available information that is readily accessible. 

It is unclear how strictly this new policy will be enforced. MU recommends employers work to get all documentation for a case, including end-client documentation, upfront in the initial filing and advises employers to file extension cases as early as possible.  MU encourages employers to closely review all template language in support letters and immigration forms as well as on the employer’s website and other publicly available information about the employer.