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1. DHS Prioritizes U.S. Advanced Degrees in H-1B Final Rule; Electronic Registration Requirement Postponed -

DHS has published a final rule amending regulations governing H-1B cap-subject petitions, including those that may be eligible for the advanced degree exemption. The final rule reverses the order by which USCIS selects H-1B petitions under the H-1B regular cap and the advanced degree exemption and introduces an electronic registration requirement for petitioners seeking to file H-1B cap-subject petitions. The rule is effective April 1, 2019, although the electronic registration requirement will be suspended for one year.

2. Tens of Thousands of Immigration Court Hearings Canceled Due to Shutdown; Trump Announces Three-Week Reopening of Federal Government -

More than 80,000 immigration court hearings were canceled due to the partial federal government shutdown, which added to an already large backlog.

3. USCIS Resumes Premium Processing for FY 2019 H-1B Cap Petitions -

USCIS has resumed premium processing for all FY 2019 H-1B cap petitions, including those eligible for the advanced degree exemption (master's cap).

4. USCIS Announces Countries Eligible for H-2A and H-2B Visa Programs -

U.S. Citizenship and Immigration Services and the Department of Homeland Security, in consultation with the Department of State, have announced the list of countries whose nationals are eligible to participate in the H-2A and
H-2B visa programs in 2019.

5. State Dept. Suspends Visa Services in Caracas, Venezuela -

The U.S. Embassy in Caracas has suspended routine visa services due to the ordered departure of non-emergency personnel. Due to continued unrest, U.S. citizens are advised to either leave Venezuela or prepare to shelter in place.

6. Trump Administration Implements Remain-in-Mexico Asylum Procedure -

The Trump administration is implementing a procedure to force certain asylum-seekers wishing to come to the United States to remain in Mexico while their cases are processed. The plan, to begin at the San Ysidro border crossing, reportedly includes busing asylum-seekers to their hearings at a courthouse in San Diego, California, from Tijuana, Mexico.

7. New Publications and Items of Interest -

New Publications and Items of Interest

8. ABIL Member / Firm News -

ABIL Member / Firm News

9. Government Agency Links -

Government Agency Links

 

 
 
1. DHS Prioritizes U.S. Advanced Degrees in H-1B Final Rule; Electronic Registration Requirement Postponed
 

The Department of Homeland Security has published a final rule amending regulations governing H-1B cap-subject petitions, including those that may be eligible for the advanced degree exemption. The final rule reverses the order by which U.S. Citizenship and Immigration Services (USCIS) selects H-1B petitions under the H-1B regular cap and the advanced degree exemption and introduces an electronic registration requirement for petitioners seeking to file H-1B cap-subject petitions. The rule is effective April 1, 2019, although the electronic registration requirement will be suspended for one year, USCIS said.

Starting on April 1, USCIS will first select H-1B petitions (or registrations, once the registration requirement is implemented) submitted on behalf of all beneficiaries, including those that may be eligible for the advanced degree exemption. USCIS will then select from the remaining eligible petitions a number projected to reach the advanced degree exemption. Changing the order in which USCIS counts these allocations will likely increase the number of petitions for beneficiaries with a master's or higher degree from a U.S. institution of higher education to be selected under the H-1B numerical allocations, USCIS said. Specifically, the agency noted, the change will result in an estimated increase of up to 16 percent (or 5,340 workers) in the number of selected petitions for H-1B beneficiaries with a master's degree or higher from a U.S. institution of higher education.

USCIS will begin accepting H-1B cap petitions for fiscal year (FY) 2020 on April 1, 2019. The reverse selection order will apply to petitions filed for the FY 2020 H-1B cap season. Petitioners may file an H-1B petition no more than six months before the employment start date requested for the beneficiary. USCIS said it will provide H-1B cap filing instructions in advance of the filing season.

As noted above, after considering public feedback, USCIS has suspended the electronic registration requirement for the FY 2020 cap season "to complete user testing and ensure the system and process are fully functional." Once implemented, the electronic registration requirement will require petitioners seeking to file H-1B cap petitions, including those that may be eligible for the advanced degree exemption, to first electronically register with USCIS during a designated registration period. Only those whose registrations are selected will be eligible to file an H-1B cap-subject petition. USCIS said it expects that the electronic registration requirement, once implemented, "will reduce overall costs for petitioners and create a more efficient and cost-effective H-1B cap petition process for USCIS and petitioners."

Additionally, USCIS said it will publish a notice in the Federal Register to announce the initial implementation of the H-1B registration process in advance of the cap season in which it will implement the requirement. Before implementation, USCIS "will conduct outreach to ensure petitioners understand how to access and use the system." USCIS said it will announce the designated electronic registration period at least 30 days in advance for each fiscal year it is required.

According to reports, DHS pushed through the proposed rule to finalization quickly. The agency had published a notice of proposed rulemaking on December 3, 2018. Public comments were due January 2; USCIS was not closed during the federal government shutdown because it is funded by fees.

The Alliance of Business Immigration Lawyers recommends that employers assess their need for H-1B employees and begin working on their H-1B petitions now. Annual demand typically far outstrips availability, so the visas are snapped up immediately.

Contact your ABIL attorney for advice and help with preparing H-1B petitions.

The final rule

The USCIS notice

 
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2. Tens of Thousands of Immigration Court Hearings Canceled Due to Shutdown; Trump Announces Three-Week Reopening of Federal Government
 

According to a report by Syracuse University's Transactional Records Access Clearinghouse (TRAC), more than 80,000 immigration court hearings were canceled due to the partial federal government shutdown, which began at midnight on December 22, 2018, and ended on January 25. President Donald Trump has announced a reopening of the government for three weeks, until February 15.

The report notes that the active case backlog was already at 809,041 as of the end of November 2018. Judge Dana Leigh Marks termed the shutdown's effect "devastating" and estimated that it could add three or four years to the wait before those canceled hearings can be rescheduled. According to TRAC figures as of January 11, immigration courts in California experienced the most hearing cancellations: an estimated 9,424. New York had the second highest number of cancellations, at 5,320. Texas was close behind New York with an estimated 5,141 immigration court proceedings canceled.

The fee-based U.S. Citizenship and Immigration Services remained open during the shutdown. Systematic Alien Verification for Entitlements (SAVE) program services remained operational during the shutdown, and SAVE said users should continue to submit cases to verify an applicant's immigration or citizenship status. The Department of State said that scheduled passport and visa services in the United States and at U.S. embassies and consulates overseas continued during the shutdown "as the situation permit[ted]." E-Verify announced, "E-Verify has resumed operations. Given that E-Verify was unavailable for over a month, we ask for your patience as we reinstate the service."

The TRAC report

Information about the growing backlog

 
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3. USCIS Resumes Premium Processing for FY 2019 H-1B Cap Petitions
 

U.S. Citizenship and Immigration Services (USCIS) announced that it has resumed premium processing as of Monday, January 28, 2019, for all fiscal year (FY) 2019 H-1B cap petitions, including those eligible for the advanced degree exemption (master's cap). Petitioners who have received requests for evidence (RFEs) for pending FY 2019 cap petitions should include their RFE response with any request for premium processing they may submit.

When a petitioner requests the agency's premium processing service, USCIS guarantees a 15-day processing time. If USCIS does not take certain adjudicative action within the 15-calendar day processing time, the agency refunds the petitioner's premium processing service fee and continues with expedited processing of the petition. USCIS said this service is only available for pending petitions, not new submissions, "because we have already received enough petitions to meet the FY 2019 cap."

The previously announced temporary suspension of premium processing remains in effect for all other categories of H-1B petitions to which it applied. USCIS said it plans "to resume premium processing for the remaining categories of H-1B petitions as agency workloads permit."

The USCIS announcement

The previous notice about the suspension of premium processing and who is affected

 
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4. USCIS Announces Countries Eligible for H-2A and H-2B Visa Programs
 

U.S. Citizenship and Immigration Services (USCIS) and the Department of Homeland Security (DHS), in consultation with the Department of State (DOS), have announced the list of countries whose nationals are eligible to participate in the H-2A and H-2B visa programs in 2019.

For 2019, the agencies have agreed to:

  • Add Mozambique and Samoa to the list of countries eligible to participate in the H-2A and H-2B visa programs;
  • Add Paraguay to the list of countries eligible to participate in the H-2A visa program;
  • No longer designate Ethiopia and the Philippines as eligible countries because they no longer meet the regulatory standards for the H-2A and H-2B visa programs; and
  • No longer designate the Dominican Republic as an eligible country for the H-2B visa program because it no longer meets the regulatory standards for that program.

USCIS said factors that could result in the exclusion of a country or the removal of a country from the list include but are not limited to fraud, abuse, denial rates, overstay rates, human trafficking concerns, and other forms of noncompliance with the terms and conditions of the H-2 visa programs by nationals of that country.

The USCIS announcement

The related Federal Register notice

 
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5. State Dept. Suspends Visa Services in Caracas, Venezuela
 

The U.S. Embassy in Caracas has suspended routine visa services due to the ordered departure of non-emergency personnel.

Due to the unrest in Venezuela, on January 24, 2019, the U.S. Department of State ordered non-emergency U.S. government employees to leave Venezuela. The U.S. embassy said the U.S. government has limited ability to provide emergency services to U.S. citizens in Venezuela. U.S. citizens are directed to contact U.S. Embassy Caracas for consular assistance. U.S. citizens residing or traveling in Venezuela "should strongly consider departing Venezuela," the embassy said. Commercial flights remained available. U.S. citizens in Venezuela are advised that if they stay in Venezuela, they ensure that they have adequate supplies to shelter in place, review personal security plans, and monitor local media for updates. The embassy's Twitter account notes that demonstrations are scheduled to take place throughout Venezuela on February 2, 2019, and may continue in the following days. Movement of U.S. government personnel will be restricted to the vicinity of the U.S. embassy.

The Department's announcement

The U.S. embassy's security alert

 
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6. Trump Administration Implements Remain-in-Mexico Asylum Procedure
 

According to reports, the Trump administration is implementing a procedure to force certain asylum-seekers wishing to come to the United States to remain in Mexico while their cases are processed. The plan, to begin at the San Ysidro border crossing, reportedly includes busing asylum-seekers to their hearings at a courthouse in San Diego, California, from Tijuana, Mexico.

This activity follows a December 2018 announcement by Homeland Security Secretary Kirstjen Nielsen of a new "Migration Protection Protocols (MPP)," which will apply to individuals arriving in or entering the United States via Mexico without documentation. " 'Catch and release' will be replaced with 'catch and return,' " the announcement states.

The Department of Homeland Security (DHS) released information on the MPP on January 24, 2019. Among other things, the information notes that:

With certain exceptions, MPP applies to aliens arriving in the U.S. on land from Mexico (including those apprehended along the border) who are not clearly admissible and who are placed in removal proceedings under INA § 240. This includes aliens who claim a fear of return to Mexico at any point during apprehension, processing, or such proceedings, but who have been assessed not to be more likely than not to face persecution or torture in Mexico. Unaccompanied alien children and aliens in expedited removal proceedings will not be subject to MPP. Other individuals from vulnerable populations may be excluded on a case-by-case basis.

The December announcement outlines the following process:

  • "Aliens trying to enter the U.S. to claim asylum will no longer be released into our country, where they often disappear before a court can determine their claim's merits.
  • Instead, those aliens will be processed by DHS and given a 'Notice to Appear' for their immigration court hearing.
  • While they wait in Mexico, the Mexican government has made its own determination to provide such individuals humanitarian visas, work authorization, and other protections. Aliens will have access to immigration attorneys and to the U.S. for their court hearings.
  • Aliens whose claims are upheld by U.S. judges will be allowed in. Those without valid claims will be deported to their home countries."

It is unclear how many are expected to follow this process or whether Tijuana has sufficient capacity to keep asylum seekers safe while they await their proceedings in the United States. Litigation is considered likely. The American Immigration Lawyers Association called the new policy a "due process disaster for asylum seekers" and said that asylum seekers waiting in Mexico "would encounter substantial barriers to accessing U.S. attorneys."

Secretary Nielsen's December announcement

A related Department of Homeland Security announcement

DHS released U.S. Customs and Border Protection data about apprehensions along the southwest border with the United States and related demographics

 
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7. New Publications and Items of Interest
 

Naturalization denials, delays; increased litigation. Syracuse University's Transactional Records Access Clearinghouse (TRAC) reports that the latest available data from the federal courts show that during December 2018, the government reported 37 new federal civil immigration naturalization lawsuits over the last six months. According to case-by-case information analyzed by TRAC, this number is up 26% over the last six months. This continues an upward monthly trend in naturalization litigation evident since March 2017 after President Trump assumed office, a trend that has accelerated over the last six months, TRAC said. During calendar year 2018, the government reported 380 federal civil immigration naturalization lawsuits. This marked the highest annual total since the 2008-2009 period.  The report

E-Verify webinars. Free E-Verify webinars are available by registering here. Upcoming topics include an E-Verify overview, E-Verify for existing users, Form I-9, myE-Verify, and information for federal contractors.

Webinars for employers and employees. The Immigrant & Employee Rights Section of the U.S. Department of Justice's Civil Rights Division is presenting webinars for employers and employees. The next webinar is on employers/HR representatives (November 23, 2018).  More information here.

Alliance of Business Immigration Lawyers:

Organizations seeking non-lawyer and lawyer volunteers. Cornell Law School has compiled a list of organizations seeking non-lawyer and lawyer volunteers to help migrants in U.S. detention and deportation proceedings. The list, which is updated on an ongoing basis, is here.

Webinars for employers and employees. The Immigrant & Employee Rights Section of the U.S. Department of Justice's Civil Rights Division will present a series of webinars for employers and employees. For more information, see justice.gov.

Nation of immigrants. Podcasts on U.S. immigration history and what it means to be an immigrant in America:

E-Verify free webinar listings are here.

Advisories and tips

  • Community Advisory: Social Media, Criminalization, and Immigration has been published by the National Lawyers Guild's National Immigration Project. This advisory summarizes ways in which immigration agents may use social media against those in removal proceedings or involved in criminal cases. The advisory is here.
  • How to safeguard your data from searches at the border is the topic of several recent articles and blogs. See, for example, NYTimes and ACLU.
  • Listings and links to cases challenging executive orders, and related available pleadings, are available at lawfareblog.com.
 
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8. ABIL Member / Firm News
 

Vic Goel was quoted by Bloomberg Law's Daily Labor Report in "H-1B Visa Lottery Gets Last-Minute Overhaul in New Rule." Reworking the lottery to favor advanced-degree holders "seems to run contrary to the plain language" of the Immigration and Nationality Act," he said. Among other things, Mr. Goel said that a pre-registration process "makes sense" as long as it's done fairly, but that he'd "like to see greater transparency in the lottery process." He also observed that "[n]ot every position that qualifies as a specialty occupation is one where a master's degree is a requirement," so some industries and occupations where advanced degrees are less prevalent could wind up losing out. The article

Charles Kuck was quoted by Talking Points Memo in "Trump's Companies Boosted Foreign Worker Visa Use to 10-Year High." He said that the Trump Organization's heavy reliance on visa programs flies in the face of the President's political rhetoric and actions otherwise. "If in fact he wanted to 'buy American, hire American,' he'd say 'we're not going to use the immigration system, we're going to go out and bring our workers down from West Virginia or from Kentucky or Maine and set them up and give them jobs. Why aren't they recruiting in West Virginia? It's hypocrisy." The article

Mr. Kuck recently spoke about President Trump's border wall efforts and the politics of immigration, on "Political Rewind." Video, audio, and a related article are available here.

Cyrus Mehta has authored a new blog entry, "To Leave Or Not To Leave: The Devastating Impact of USCIS's Unlawful Presence Policy on Foreign Students."

Mr. Mehta was quoted by the Times of India in "Reversal in H-1B Lottery Order, First Priority to U.S. Degree Holders," about his views on the change in the way H-1Bs will be counted so that they will be skewed toward U.S. advanced degree holders: "The skewing of H-1B visas toward those with master's degrees from U.S. institutions under the new selection methodology is in some senses counter to the H-1B law, which was to permit those with foreign degrees, and equivalent work experience, to qualify for H-1B classification. Hence, a foreign physician with a master's degree in medicine from a foreign university who intends to provide critical medical services in a shortage area in the United States may have less chances of nabbing an H-1B visa under the new proposal." He added that "[e]ven a highly skilled IT worker with a bachelor's degree in computer science from a reputed Indian institution such as the Indian Institute of Technology will have less chance of getting an H-1B in the new proposal. Both the physician and the IT worker with foreign degrees have the potential of making contributions to the U.S. in the same way, or even greater, as one who has recently graduated with an MBA from a U.S. university." The article

Stephen Yale-Loehr (bio: http://www.abil.com/lawyers/lawyers-loehr.cfm?c=US) was quoted by Fox News in "As Border Wall Talks Continue, Agents Keep Finding Cross-Border Tunnels." The article includes a video interview with Mr. Yale-Loehr. Noting that a multi-pronged approach to border security is called for that includes better drones, more personnel, and electronic surveillance, he said, "I agree they have increased their ability to find these tunnels but we keep finding new tunnels—it’s a never-ending problem. And no matter how much money you have or how many personnel you have, you’re never going to be 100 percent effective. But, certainly, they are doing a better job now than they used to." He said that a wall could be one aspect of a multi-pronged border security approach but that it wouldn't solve the problem. The article and video

Mr. Yale-Loehr was quoted by Knowledge@Wharton, University of Pennsylvania, in "Exploring Immigration: Will the U.S. See Reform in 2019?" He said, "Congress came close in 2013 with a comprehensive immigration reform package that was passed bi-partisanly through the Senate and was 1,200 pages, but it failed to clear the House of Representatives. It has been historically hard to get immigration through any Congress and it has become only harder in this more politicized environment." He also commented, "People in Congress are saying if we could combine funding for border security, plus some relief for DACA recipients and some protection for people who have temporary protected status, we could see some movement on immigration. I hope that would be the case, but politically we may be unlikely to achieve that." Mr. Yale-Loehr concluded, "We need comprehensive immigration reform. There are many broken parts to the immigration system. Just trying to fix one of them, whether it's asylum or illegal immigration, isn't going to work. We need to have an overall approach. The Senate tried to do this in 2013. We need to have a national conversation about what is the role of immigration and when immigration can help the United States so that we can come up with a new overall comprehensive framework. Then we can untangle some of the mess that we've gotten ourselves into." The article

Mr. Yale-Loehr was quoted by Voice of America regarding a Forbes.com H-1B column (in Vietnamese). The article

Mr. Yale-Loehr was quoted by the Houston Chronicle in "With Inaction, Supreme Court Gives Longer Life to DACA as Shutdown Drags On." Commenting on the U.S. Supreme Court's declining to take up the Trump administration's appeal in a "Dreamers" case, Mr. Yale-Loehr said, "I think it is very unlikely to be considered this term, which means DACA lives another 10 months." The article

 
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9. Government Agency Links
 

Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, and the Department of State's latest Visa Bulletin with the most recent cut-off dates for visa numbers:

USCIS Service Center processing times online

Department of State Visa Bulletin

Visa application wait times for any post

 
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