News from the Alliance of Business Immigration Lawyers Vol. 15, No. 1B • January 15, 2019
1. Begin Work on H-1B Petitions Now, ABIL Attorneys Urge; H-1B Tips for Employers -Employers should assess their need for H-1B employees and begin working on their H-1B petitions now. Filing season is expected to open April 1, 2019, for FY 2020 cap-subject H-1B visas.
2. DOL’s iCERT System Crashed on January 1, Preventing H-2B Application E-Filings -The iCERT website crashed early on January 1, 2019, preventing employers from e-filing their application packets for the 33,000 H-2B visas with an April 1, 2019, start date for temporary nonagricultural H-2B workers.
3. USCIS Launches New Online Fee Calculator -The Online Fee Calculator will determine the exact filing and biometric fees to include with forms and “will always have the most up-to-date fee information,” the agency said.
4. State Dept. Releases Outlook for Visa Number Availability Through May -The Visa Bulletin for February 2019 includes information on employment-based visa number availability on a monthly basis through May.
5. Interview Waiver Guidance Revised for Petitions to Remove Conditions on Residence -The new guidance addresses when officers may consider interview waivers.
6. State Dept. Issues Travel Advisory for China -The Department of State warned U.S. citizens to exercise increased caution when traveling to China due to “arbitrary enforcement of local laws as well as special restrictions on dual U.S.-Chinese nationals.” The travel advisory states that Chinese authorities have asserted broad authority to prohibit U.S. citizens from leaving China by using “exit bans,” sometimes “keeping U.S. citizens in China for years.”
7. USCIS Terminates Categorical Parole Programs for Certain Individuals Present in CNMI -The termination affects USCIS parole programs for immediate relatives of U.S. citizens and certain stateless individuals in CNMI; CNMI permanent residents, immediate relatives of CNMI permanent residents, and immediate relatives of citizens of the Freely Associated States (Federated States of Micronesia, Republic of the Marshall Islands, or Palau); and certain in-home foreign worker caregivers of CNMI residents.
8. New Publications and Items of Interest -New Publications and Items of Interest
9. ABIL Member / Firm News -ABIL Member / Firm News
10. Government Agency Links -Government Agency Links
1. Begin Work on H-1B Petitions Now, ABIL Attorneys Urge; H-1B Tips for Employers
Alliance of Business Immigration Lawyers (ABIL) attorneys recommend that employers assess their need for H-1B employees and begin working on their H-1B petitions now. Filing season is expected to open April 1, 2019, for fiscal year (FY) 2020 cap-subject H-1B visas. Annual demand typically far outstrips availability, so the visas are snapped up immediately.
ABIL recommends the following ways for employers to maximize their H-1B chances:
- Apply based on a master’s degree from a U.S. nonprofit university as long as all degree requirements were completed before April 1
- Ensure a close match between the course of study and job duties
- Apply concurrently for optional practical training (OPT) or STEM OPT and H-1B
- Apply for “consular notification,” not change of status, to preserve OPT if OPT lasts beyond October 1
- Apply for “change of status” if OPT expires before October 1 to preserve work eligibility under “cap gap” policy, but avoid travel
- Choose O*NET code and wage level carefully
- If more than one field of study could qualify a person for the position, explain task by task how the position requires the education
- Be careful of Level 1 wages. Instead, obtain an acceptable prevailing wage from a legitimate source other than the Department of Labor, offer to pay a higher wage from the outset, or explain why this particular job is both entry level and qualifies as a “specialty occupation”
- Consider other visa options if your employee is not selected in the H-1B lottery
- Check the USCIS website for changes to form, fee, and filing location
The Department of Homeland Security (DHS) published a notice of proposed rulemaking on December 3, 2018, that would require petitioners seeking to file H-1B cap-subject petitions to first electronically register with USCIS during a designated registration period. USCIS said the proposed rule would also reverse the order by which the agency selects H-1B petitions under the H-1B cap and the advanced degree exemption, with the goal of increasing the number of beneficiaries with master’s or higher degrees from U.S. institutions of higher education to be selected for H-1B cap numbers and introducing “a more meritorious selection of beneficiaries.” It is unclear, however, if the rule will be finalized and implemented in time for the start of the
H-1B filing season on April 1.
Contact your local ABIL attorney for advice and help with preparing H-1B petitions.
The proposed rule published in December 2018
2. DOL’s iCERT System Crashed on January 1, Preventing H-2B Application E-Filings
The Department of Labor’s (DOL) iCERT website crashed early on January 1, 2019, preventing employers from e-filing their application packets for the 33,000 H-2B visas with an April 1, 2019, start date for temporary nonagricultural H-2B workers. Employers and their attorneys reported working late on New Year’s Eve to be able to submit their applications at midnight ET, only to be thwarted repeatedly while hitting “submit.”
DOL subsequently posted the following iCERT announcement:
We sincerely apologize for the major service interruption in the iCERT System early in the morning of January 1, 2019. Due to overwhelming filing demand, the Department’s technology staff is working diligently to investigate the cause of the system outage and has temporarily taken the iCERT System down for the remainder of January 1st and until further notice. The Department will provide another update on the status of the iCERT System around 12:00PM EST, January 2nd, and separate advance public notice regarding when the iCERT System will be operational once again.
DOL’s Office of Foreign Labor Certification (OFLC) announced on January 7, 2019, that the system was back up as of 2 p.m. ET that day.
OFLC announced on January 8, 2019, that it had received approximately 5,276 H-2B applications covering more than 96,400 worker positions, which was nearly three times greater than the 33,000 semiannual visa allotment for fiscal year 2019. To process this “significant surge,” OFLC said it would sequentially assign H-2B applications to analysts based on the calendar date and time on which the applications were received, measured to the millisecond.
On January 11, 2019, OFLC posted the following additional announcements:
The Department has received questions about the difference between timestamps displayed in iCERT and timestamps contained in emails confirming the submission of applications. When an applicant submits an application, the system generates a courtesy email to the applicant which confirms the submission. The date and time in the courtesy email, however, does not represent the official date and time of the applicant’s submission. Rather, it indicates the time at which the email was generated. To reiterate, the official date and time of each application may be viewed in the applicant’s H-2B Portfolio Screen through the applicant’s iCERT system account.
The Department undertook an after-action analysis of the iCERT system’s January 7, 2019 performance. Through a review of the data logs, the Department has determined that 186 applicants submitted the same application more than once in the iCERT system. Because the iCERT database overwrites the previous date and time stamp when a new submission is made, the official date and time saved in the iCERT database is the date and time of the final submission. For these 186 applications, the Department was able to determine the time of the first submission down to the second. For the 152 applicants with multiple submissions within the same second, the final time stamp to the millisecond is reflected in the official date and time. In the remaining 34 cases, the submissions were made outside of the same second. Those applications are now at the first submission’s second. These time stamps are reflected in the official receipt date and time that may be viewed on the H-2B Portfolio Screen through an iCERT system account.
Some users received an outage banner which delayed or blocked access to the H-2B page in the iCERT system. To increase processing capacity on January 7, 2019, the Department scaled up iCERT infrastructure to 50 load-balanced servers. One of the pathways to these servers did not allow access to the iCERT’s H-2B module system at the 2:00 p.m. EST opening of the system, and for approximately two and [a] half hours thereafter. All iCERT users were randomly assigned to a server at log-on as per a standard load-balancing algorithm. As a result, users assigned to this particular pathway experienced the outage banner and may have been delayed from getting into iCERT’s H-2B module.
In addition, the Department received questions regarding whether there was a restoration of data due to data corruption. There was no restoration of data from back-up and no data corruption found connected to the system disruption of January 1, 2019.
The Department was notified that some applicants were missing certain required data or attachments from their applications. As per standard practice, applicants are encouraged to log into their iCERT accounts and verify that their applications are complete and accurate. If any attachments are missing, applicants may upload them at any time. If any required data fields on the ETA-9142B are missing or inaccurate, applicants may contact the Office of Foreign Labor Certification (OFLC) help desk at firstname.lastname@example.org and provide the relevant H-2B case number and explain the necessary corrections.
In light of the unprecedented demand for H-2B labor certifications, the Department is considering rulemaking changing the process by which applications are ordered for processing, including randomization and other methods. In the interim, the Department welcomes comments and suggestions from the public on these matters. Comments and suggestions should be directed to … H2BReform.Comments@dol.gov.
Some attorneys said the agency had been warned in advance about the capacity issue, and that lawsuits were pending.
3. USCIS Launches New Online Fee Calculator
U.S. Citizenship and Immigration Services (USCIS) has launched the Online Fee Calculator to assist in calculating the correct fee amount to include when filing forms with USCIS at an agency Lockbox facility.
USCIS said it developed the new Online Fee Calculator to help reduce the number of applications rejected due to incorrect fee amounts. Fee issues, including incorrect fee amounts, are consistently a leading cause of rejection. For applications that require fees, USCIS rejects forms submitted with an incorrect payment amount. The Online Fee Calculator will determine the exact filing and biometric fees to include with forms and “will always have the most up-to-date fee information,” the agency said.
When using the Online Fee Calculator, filers select a form or combination of forms and answer a series of questions. The calculator then calculates the correct fee amount that the filer must submit.
USCIS said the Online Fee Calculator works on all browsers and on both desktop and mobile devices. To protect privacy, the agency noted, “it does not collect user data.”
For forms filed at Lockbox facilities, USCIS accepts payment via check, money order, or credit card with Form G-1450, Authorization for Credit Card Transactions.
More information on payment at the USCIS webpage on paying USCIS fees
4. State Dept. Releases Outlook for Visa Number Availability Through May
The Department of State’s Visa Bulletin for the month of February 2019 notes the following with respect to employment-based visa number availability on a monthly basis through May:
EMPLOYMENT-based categories (potential monthly movement)
WORLDWIDE (most countries): Up to two months.
China and India: Up to one month.
Worldwide: Current for the foreseeable future.
China: Up to three months.
India: Up to one week
China: Up to three weeks.
India: Up to three months.
Philippines: Rapid movement to generate demand.
Employment Fourth: Current for most countries.
El Salvador, Guatemala, and Honduras: Up to one week.
Mexico: Rapid forward movement until limit is reached.
Employment Fifth: The category will remain “Current” for most countries.
China-mainland born: Up to one week.
Vietnam: Up to three weeks.
The above final action date projections for the [employment-based category] indicate[s] what is likely to happen on a monthly basis through May. The determination of the actual monthly final action dates is subject to fluctuations in applicant demand and a number of other variables. It is also important to remember that by no means has every applicant with a priority date earlier than a prevailing final action date been processed for final visa action, with applicants often processing at their own initiative and convenience.
The Visa Bulletin for February 2019
5. Interview Waiver Guidance Revised for Petitions to Remove Conditions on Residence
U.S. Citizenship and Immigration Services (USCIS) has released a policy memorandum revising interview waiver guidance for Form I-751, Petition to Remove Conditions on Residence. The guidance applies to all USCIS officers adjudicating Forms I-751, and supersedes previous guidance issued in 2005. The memo explains that in general, officers must interview a conditional permanent resident who has obtained lawful permanent resident status on a conditional basis and who is the principal petitioner on an I-751, unless the interview is waived. The new guidance addresses when officers may consider interview waivers.
The memo explains that USCIS officers may consider waiving an interview if they are satisfied that:
- They can make a decision based on the record because it contains sufficient evidence about the bona fides of the marriage and that the marriage was not entered into for the purpose of evading the immigration laws of the United States;
- For Form I-751 cases received on/after December 10, 2018, USCIS has previously interviewed the I-751 principal petitioner (for example, for a Form I-485 or Form I-130);
- There is no indication of fraud or misrepresentation in the Form I-751 or the supporting documentation; and
- There are no complex facts or issues that require an interview to resolve questions or concerns.
When determining whether to waive an interview, the considerations listed above apply regardless of whether the I-751 is filed as a joint petition or as a waiver of the joint filing requirement, the memo states. Cases involving fraud or national security concerns must be referred to the Fraud Detection and National Security Directorate according to local procedures.
The memo, which includes additional information
6. State Dept. Issues Travel Advisory for China
The Department of State warned U.S. citizens on January 3, 2019, to exercise increased caution when traveling to China due to “arbitrary enforcement of local laws as well as special restrictions on dual U.S.-Chinese nationals.” The travel advisory states that Chinese authorities have asserted broad authority to prohibit U.S. citizens from leaving China by using “exit bans,” sometimes “keeping U.S. citizens in China for years.”
The travel advisory states that China uses exit bans coercively to compel U.S. citizens to participate in Chinese government investigations, to lure individuals back to China from abroad, and to aid Chinese authorities in resolving civil disputes in favor of Chinese parties. In most cases, U.S. citizens become aware of the exit ban only when they attempt to leave China, the advisory states, and there is no way to find out how long the ban may continue. “U.S. citizens under exit bans have been harassed and threatened,” the advisory notes.
The advisory warns that U.S. citizens may be detained without access to U.S. consular services or information about their alleged crimes. U.S. citizens may be subjected to prolonged interrogations and extended detention for reasons related to “state security.” Security personnel may detain and/or deport U.S. citizens for sending private electronic messages critical of the Chinese government.
The advisory also notes that China does not recognize dual nationality. U.S.-Chinese citizens and U.S. citizens of Chinese heritage may be subject to “additional scrutiny and harassment,” and China may prevent the U.S. Embassy from providing consular services, the advisory states.
Among other things, the advisory recommends that those traveling to China enter on their U.S. passports with a valid Chinese visa; enroll in the Smart Traveler Enrollment Program; and have a contingency plan.
The advisory, which includes additional information
7. USCIS Terminates Categorical Parole Programs for Certain Individuals Present in CNMI
Effective immediately, the categorical Commonwealth of the Northern Mariana Islands (CNMI) parole programs are terminated. This affects USCIS parole programs for immediate relatives of U.S. citizens and certain stateless individuals in CNMI; CNMI permanent residents, immediate relatives of CNMI permanent residents, and immediate relatives of citizens of the Freely Associated States (Federated States of Micronesia, Republic of the Marshall Islands, or Palau); and certain in-home foreign worker caregivers of CNMI residents.
After any parole authorized through these programs expires, USCIS will not renew that parole. Although USCIS will not otherwise authorize re-parole under these programs, it will allow a transitional parole period and extension of employment authorization (if applicable) for up to 180 days for affected individuals, with parole not extending beyond June 29, 2019. The transitional parole period of up to 180 days “will help ensure an orderly wind-down of the programs and provide an opportunity for individuals to prepare to depart or seek another lawful status,” USCIS said.
Current parolees who have requested an extension of parole from USCIS will receive a letter granting an additional 180 days of transitional parole, unless there is a specific reason to deny the request as determined on a case-by-case basis, USCIS said. For those parolees with an Employment Authorization Document (EAD) expiring at the same time as their parole, that letter and the EAD will serve as evidence of identity and work authorization for employment eligibility verification (Form I-9) purposes during the 180-day period.
USCIS will also issue a new EAD valid for the duration of the re-parole period to those parolees who request an extension of parole. The new EAD will be issued automatically upon approval for the period of re-parole, and no new employment authorization application or fee will be required, the agency said. Current parolees with upcoming expiration dates who have not yet requested an extension of parole, and who desire to receive the additional period of transitional parole, should request such transitional parole “as soon as possible.”
Information on eligibility requirements and how to complete a request
8. New Publications and Items of Interest
Refugee/asylee flyer. The Department of Justice’s Immigrant and Employee Rights Section (IER) recently updated an informational flyer providing refugees and asylees with information on the Form I-9 work authorization verification process and how to get help from IER for possible related discrimination. The flyer is available in Amharic, Arabic, Armenian, Burmese, English, Farsi, French, Karen, Kayah, Nepali, Russian, Simplified Chinese, Somali, Spanish, Swahili, Tigrinya, Ukrainian, and Urdu. See Dept. of Justice for more information. Under “IER Publications,” scroll down to “Information for Refugees and Asylees About the Form I-9” for links to the flyer in various languages. The English flyer is also available.
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:
- The latest immigration news is at https://www.abil.com/news.cfm.
- The latest published media releases include:
- ABIL Says Proposed Change to Public Charge Rule Would Exclude Immigrants from Government Programs
- New Data Show Increase in H-1B Denials and RFEs
- ABIL Urges Administration to Change “Buy American and Hire American” Executive Order
- ABIL Member Kuck Baxter Immigration Commercial Nominated for an Emmy
- ABIL Members Note Immigration Threats for Employers in 2018
- ABIL is available on Twitter: @ABILImmigration.
- Recent ABIL member blogs are at http://www.abilblog.com/.
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:
- Statutes of Liberty: (new episode: A Prescription for Success: EB-1 for Physicians)
- Code Switch Podcast: What Does It Mean To Be A ‘Nation of Immigrants‘?
- Hidden Brain: The Huddled Masses and the Myth of America
- American Pendulum I
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.
9. ABIL Member / Firm News
Cyrus Mehta authored a new blog entry, “Trump Can Provide a Potential Path to Citizenship for H-1B Visa Holders.”
Stephen Yale-Loehr was quoted by several media outlets on possible upcoming Supreme Court cases:
- “Will The Supreme Court Fast-Track Cases Involving Trump?,” published by 538.com. Commenting on the ongoing litigation over Deferred Action for Childhood Arrivals (DACA), Mr. Yale-Loehr said it would be somewhat unusual for the high court to intervene at this stage. He added that the DACA case lacks the “immediacy” of the travel ban case, where thousands of people were being prevented from entering the country, so there’s not the same sense of urgency for the Supreme Court to act. The article is available here.
- “Major Immigration Cases Ahead In 2019,” published by Law360. Mr. Yale-Loehr said that the U.S. Supreme Court’s decision earlier this year in Trump v. Hawaii upholding the president’s travel ban could have an impact on litigation over the recent asylum policy as it circulates through the appellate courts. “If this case goes to the Supreme Court, the court will have to decide the scope and possible limits of its travel ban decision,” he said. The article is at Law360 (available by registration).
Mr. Yale-Loehr was quoted in “Sanctuary Policies Criticized Again After Officer’s Slaying. Here’s a Look at the Issues,” published by the San Francisco Chronicle. Commenting on whether police and sheriffs’ deputies ask about immigration status when making an arrest, Mr. Yale-Loehr said that varies among police departments and individual officers in California and elsewhere. If a suspected drunken driver lacked a license, for example, “or the driver’s license looked fishy, or the individual looked or sounded foreign,” some officers might contact U.S. Immigration and Customs Enforcement to ask about the individual’s legal status, he said.
Mr. Yale-Loehr was quoted in “What Did Donald Trump’s Tweet About H-1B Visas Mean?,” published by Forbes. He said that sometimes people can read too much into President Trump’s tweets and statements. He advised people to focus instead on concrete policy actions. “This tweet runs counter to what the administration has actually done against H-1B workers. Ever since the President issued his ‘Buy American and Hire American’ executive order in April 2017, U.S. Citizenship and Immigration Services (USCIS) has made it harder for employers to hire H-1B workers and to keep them.” He noted a National Foundation for American Policy report that showed a 41% increase in denials of H-1B petitions in the 4th quarter of FY 2017. “Just last week, a company sued USCIS in federal court after the agency denied a company’s extension request for an H-1B employee, even though the agency had approved four H-1B petitions before for the same person in the same job. In effect, the President has built an invisible wall against H-1B workers. Given all that, why should we believe this apparent about-face? Even if President Trump is serious about making it easier for H-1B workers to stay permanently in the United States, his administration cannot do that unilaterally. Congress would have to pass a law.” He pointed out that Congress is divided on immigration issues, making this type of reform, particularly in isolation, difficult to picture in the current environment.
10. 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