The USCIS has announced that premium processing will return in phases throughout June. Below is a chart to help you see when your petition will be eligible: JUNE 1st: -All I-140’s can be premium processing JUNE 8th: -H-1b transfers filed before June 8th can be upgraded -H-1b extensions filed before June 8th can be upgraded -H-1b cap exempt entities filed before June 8th can be upgraded -Non H-1b I-129 petitions (TN, L-1) filed before June 8th can be upgraded. E-3 still not eligible for premium processing JUNE 15: -h-1b’s that are cap exempt entities, regardless of original filing date, can be premium processed -H-1b’s for physicians under J-1 waiver JUNE 22nd: -All I-129’s can be premium processed (including cap cases, H-1b transfers that were filed after June 8th
Yesterday, the USCIS was handed another defeat at the hands of a Federal Judge, this time from Atlanta. In a case that echoed prior decisions from other Federal Courts, the Court ruled that the USCIS' practice and policy over the past 10+ years relative to H-1b adjudications was unlawful. The decision struck at the interpretation of employer-employee and the itinerary requirement which had resulted in the issuance of shortened approval notices. A copy of the full decision can be read here In even better news, the USCIS conceded defeat in only what can be imagined as the scene from the Wizard of Oz when it was proclaimed "Ding Dong the Witch is dead" and they entered into a settlement agreement. This settlement agreement provides for the following: 1. The USCIS will rescind the 2018 Contracts and itinerary memo 2. The USCIS will stop applying the current itinerary language A portion of the settlement agreement states that they will not apply the Neufeld memo but, this may be more limited than it is being reported. What does this mean practically ? 1. There should be no more shortened approval notices limited by the duration of the WO/JO/SOW. 2. End client letters or other documentation should not be routinely required but, the USCIS may continue to ask for this type of documentation to prove the existence of a job that meets the specialty occupation standards 3. The USCIS will not automatically re-open previously shortened cases and issue full approval notices but, you can go into Federal Court and force this action. As a result of these actions, we can expect the USCIS to issue new regulations but, given the amount of time it takes for regulations to be finalized, these will likely be completed by the Administration that wins in Nov. A [...]
As the White House is contemplating placing a moratorium on the issuance of H-1b visas and the issuance of OPT STEM work permits, it may be helpful for the WH to check DOL data. If they do, they will learn that the unemployment rate of IT professionals, which make up a large percentage of H-1b workers and OPT STEM workers has not been impacted significantly by COVID-19. The unemployment rate for IT professionals was at 2.8% in April. It is true that 30+ million Americans are currently out of work due to the current pandemic, but, the impact on the IT space is nominal. IF the WH cares enough about the economy to actually check out the facts, they will drop their ill-conceived plan that attacks STEM jobs and will instead focus on other areas. For the data, check out the NFAP policy brief.
When President Trump issued his Executive Order last month suspending the issuance of green cards for 60 days, he included a statement promising that all legal visa programs would be reviewed. It is common knowledge that the Trump Administration does not support legal immigration and has been trying to restrict business visas since he took office and the H-1b visa has been a top target. U.S. employers who use the H-1b visa to supplement its workforce have been anxiously waiting the next EO. A letter from 4 Republican Senators has been released by Politico and it provides a wish list including the elimination of the OPT and STEM OPT programs, the elimination of an investor visa and the elimination of new H-1b visas bringing into doubt this year's cap cases among others. The idea that the unemployment rate of restaurant workers is relevant to the employment of STEM workers is nonsense and I would guess that each of these 4 Senators, are well aware of the idiocy of their claims however, all politicians know how to take advantage of a crisis to push an agenda that they could not have otherwise pursued. Earlier this week, Forbes ran an article discussing possible restrictions that could be coming. As of now, an EO has not been released so the content of and the consequences are mere speculation but, we have a glimpse at the wish list and it is ugly.
Today, President Trump issued an Executive Order that would suspend the issuance of immigrant visas (green cards) for a period of 60 days. The EO only applies to persons obtaining an immigrant visa from abroad and contains exemptions for a number of categories including healthcare workers. The exemption for healthcare workers may apply only to those entering the US specifically to combat COVID-19 but, that is not clear. With the on-going closure of US Consulates abroad and with immigrant visa numbers exhausted (retrogressed) in many categories until Oct 1, 2020, this EO has very little, if any, effect on employment based immigration. The EO does contain a foreboding announcement that within 30 days, an additional EO may be issued to address non-immigrant visas. Given this Administration's open disdain for the H-1b and L-1 programs and the repeated efforts to circumvent the current regulations and statutes, this may be an opportunity for them to achieve their goal of reducing legal immigration, just in time for the election.
Last week, the USCIS was met with another Federal lawsuit claiming that they are failing to properly follow the law when adjudicating H-1b cases filed on behalf of market research analysts. A successful outcome could provide assistance for others; such as business analysts, systems analysts, telcom, and finance occupations where the USCIS has questioned whether they meet the specialty occupation standards. This lawsuit was backed by the American Immigration Council and more information can be found here.
In a series of recent Federal Court decisions, rulings have been issued declaring that the USCIS at the direction of the Trump Administration have been illegally denying H-1b visas on grounds that have no legal or factual basis. A nice summary of these cases can be found in this recent Forbes article. The article, written by immigration policy expert, Stuart Andreson from NFAP, contains links to the actual cases if you want to read the full opinions. With Federal Court adverse decisions coming from multiple courts with a mix of Republican appointed and Democrat appointed judges and with no reversals from any Federal Appellate Court, one has to wonder at what point the USCIS gets tired of being punched in the mouth and throws in the towel and returns to actually following the law as it is written ? (maybe only Stephen Miller can answer that question ?) These cases were all brought by Heavyweight Champ Jonathan Wasden. Kudos to him and his firm. Litigators extraordinaire !
With all of the news about COVID-19; and, with Consulates, USCIS offices and borders closing, it was easy to miss that the H-1b cap lottery registration ended last week. The USCIS has indicated that registrants who are chosen in the lottery will be notified by March 31st and then be given at least 90 days to file their H-1b cap petition. There is some speculation that the 90 day filing window may be expanded due to the effects of COVID-19. Please note that persons who are going to take advantage of the cap-gap rules must still file before the expiration of their EAD and may not have the full 90 days.
The US has announced agreements with both Mexico and Canada to close the border for all but essential travel. Read the Fact Sheet and announcements here. All non-essential travel has been prohibited. We believe this prohibits the issuance of new TN's for Canadians. For Mexican nationals, a new TN requires a visa issued from a US Consulate which are all closed at present. For persons who already are in possession of a TN or other working status, for example, an L visa, it is not clear whether you would be permitted to re-enter the US after a trip to Canada but, we are advising you not to travel unless you are prepared to remain in Canada until the border is opened again.
Effective today, the USCIS has suspended premium processing for I-129 and I-140 petitions. Cases previously filed as premium will continue to be adjudicated under the premium guidelines. Cases filed yesterday to be received today by the USCIS will have their premium filing fee returned.