Issue 126 March 2019

Trump Administration Moves Ahead on Reversing H-4 EADs

On February 20, 2019, the Trump administration sent a proposed rule to the Office of Management and Budget (OMB) for review that would halt work authorization for H-4 spouses of H-1B visa holders in the United States. If OMB approves, the administration is expected to move forward with the regulatory process, including publication of the proposed rule in the Federal Register and requesting public comments. Publication of a final rule could take months, and new legislation or lawsuits could have an impact. It is also unclear whether the more than 90,000 current H-4 spouses with work authorization, mostly women from India, will be exempted from the final rule. Historically, in similar situations, the Department of Homeland Security (DHS) has allowed current EADs to expire. As of now, H-4 visa holders can still apply for and work under H-4 EADs.

According to information DHS filed with OMB, "DHS anticipates that there would be two primary impacts [of the rule] that DHS can estimate and quantify: the cost-savings accruing to forgone future filings by certain H-4 dependent spouses, and labor turnover costs that employers of H-4 workers could incur when their employees' EADs [employment authorization documents] are terminated. Some U.S. workers would benefit from this proposed rule by having a better chance at obtaining jobs that some of the population of the H-4 workers currently hold, as the proposed rule would no longer allow H-4 workers to enter the labor market early."

The Trump administration has long vowed to rescind the H-4 work authorization program, which has allowed certain H-4 spouses to apply for EADs since 2015. It is unclear what prompted the sudden move forward with the rule, after a long delay. In December, the D.C. Circuit Court of Appeals allowed a lawsuit against the H-4 program to proceed. That case was filed by "Save Jobs USA," a group of technology workers who say the H-4 program takes away jobs from U.S. workers. Natalie Tynan, a former DHS employee, said, "In general from an agency's perspective, the agency prefers to issue its regulations rather than have the courts opine on what the regulations should say. So any opportunity to moot out litigation is a positive one for the agency."

Details on the proposed rule are at https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=201810&RIN=1615-AC15. The OMB notice is at https://www.reginfo.gov/public/do/eoDetails?rrid=128839&fbclid=IwAR1nF2lWLCcbRTDXfoOHiTfv7jfklrGd6owzhKH2bUAiWgwra6R5hzNQOwk.

Premium Processing Resumes for H-1B Petitions Filed by December 21

U.S. Citizenship and Immigration Services (USCIS) announced that it has resumed premium processing for all H-1B petitions filed on or before December 21, 2018.

Those who received a transfer notice for a pending H-1B petition and are requesting premium processing service must submit the premium processing request to the USCIS service center now handling the petition. They should also include a copy of the transfer notice with the premium processing request to avoid possible delays, USCIS said. Additionally, those who received a request for evidence (RFE) for a pending petition should also include the RFE response with the premium processing request. If the petition was transferred and the premium processing request is sent to the wrong center, USCIS said it will forward it to the petition's current location. However, the premium processing clock will not start until the premium processing request has been received at the correct center.

USCIS noted that when an H-1B petitioner properly requests the agency's premium processing service, the agency guarantees a 15-day processing time. "If we do not take certain adjudicative action within the 15‑calendar day processing time, USCIS refunds the petitioner's premium processing service fee and continues with expedited processing of the petition," USCIS said.

A previously announced temporary suspension of premium processing remains in effect for H-1B petitions to which it applied that were filed on or after December 22, 2018. On January 28, 2019, USCIS resumed premium processing for FY 2019 cap-subject petitions, including those eligible for the advanced degree exemption. USCIS said it plans to resume premium processing for the remaining categories of H‑1B petitions "as agency workloads permit."

The USCIS announcement, which includes instructions on where to send a premium processing request if USCIS has transferred the petition, is at https://www.uscis.gov/news/news-releases/uscis-resumes-premium-processing-h-1b-petitions-filed-or-dec-21-2018.

Trump Administration Increases Scrutiny, RFEs for H-1B Petitions

According to statistics released by U.S. Citizenship and Immigration Services, the percentage of H-1B cases with requests for evidence (RFEs) has greatly increased. In the first quarter of fiscal year (FY) 2017, the rate of H-1B RFEs was less than 30%. In the first quarter of FY 2019, that rate skyrocketed to 60%. At the same time, the percentage of H-1B completions with an RFE that were approved has fallen, from almost 80% in the first quarter of FY 2017 to about 60% in the first quarter of FY 2019.

Approval rates were much higher for certain large companies; Apple, Facebook, Google, Intel, and Microsoft reportedly all had 99% approval rates; Amazon and Cisco had a 98% approval rate.

According to reports, a frequent reason for the RFEs was asking companies to prove that the offered job was in a "specialty occupation." Other questions related to valid employer-employee relationships and specific assignments. Numerous lawsuits have been filed in federal court challenging recent H-1B denials.

The USCIS statistics are at https://bit.ly/2GJ6AJb. An article about several lawsuits is available at https://news.bloomberglaw.com/daily-labor-report/it-consulting-firms-trying-to-force-litigation-of-h-1b-denials.

USCIS to Issue New Version of Form I-539 and New I-539A on March 8

U.S. Citizenship and Immigration Services (USCIS) has announced that the revised Form I-539, Application to Extend/Change Nonimmigrant Status, and new Form I-539A, will be published on March 8, 2019, not March 11 as previously reported. USCIS will accept the old form through March 21.

Form I-539 is used for a variety of application types, including:

  • Certain nonimmigrant applications for an extension of stay
  • Certain nonimmigrant applications for a change of status
  • Reinstatement for F-1 and M-1 students

USCIS has expanded the scope of information to be gathered and will change the filing and adjudication requirements. The revised Form I-539 includes the following significant changes:

  • Every co-applicant included on the primary applicant’s Form I-539 must submit and sign a separate Form I-539A. Parents or guardians may sign on behalf of children under 14 or any co-applicant who is not mentally competent to sign.
  • Every applicant and co-applicant must pay an $85 biometric services fee, except certain A, G, and NATO nonimmigrants as noted in the new Form I-539 instructions.
  • Every applicant and co-applicant will receive a biometric services appointment notice, regardless of age, containing their individual receipt number. The biometric services appointments will be scheduled at the Application Support Center (ASC) closest to the primary applicant's address. Co-applicants who wish to be scheduled at a different ASC location should file a separate Form I-539.

USCIS said it will reject any Form I-539 that is missing any of the required signatures or biometrics fees, including those required for Form I-539A.

The USCIS announcement is at https://www.uscis.gov/news/alerts/uscis-publish-revised-form-i-539-and-new-form-i-539a.

March Visa Bulletin Shows Progress

The Department of State (DOS) has released the Visa Bulletin for March 2019, showing modest progress for EB-1 for all chargeability areas as well as EB-2 for China and India; EB-3 and Other Workers China, India, and the Philippines; and EB-5 China and Vietnam, with the remainder of the priority dates remaining Current.

The specific changes in the Final Action Cut-Off Dates, or priority dates, from the February to the March Visa Bulletin are:

  1. EB-1: China and India—forward progress of two weeks for China and India to February 22, 2017; Mexico—forward progress of three weeks to February 22, 2017; All Other Chargeability Areas—forward progress of one month to January 1, 2018.
  2. EB-2: China—forward progress of three months to January 1, 2016; India—forward progress of three days to April 9, 2009.
  3. EB-3: China—forward progress of one week to July 8, 2015; India—forward progress of one month to May 22, 2009; Philippines—forward progress of four months to December 1, 2017.
  4. Other Workers: China—forward progress of two weeks to August 15, 2007; India—forward progress of one month to May 22, 2009; Philippines—forward progress of four months to December 1, 2017.
  5. EB-5: China (Non-Regional Center)—forward progress of one week to September 8, 2014; Vietnam—forward progress of one month to July 15, 2016.

Applicants whose priority dates are currently backlogged are recommended to review the dates to determine if they may be eligible to file during the month of March. U.S. Citizenship and Immigration Services (USCIS) noted that beneficiaries of approved employment-based immigrant petitions whose priority dates become current in March 2019 should use the "Final Action Cut-Off Dates" when filing during the month of March 2019. USCIS in the recent past had accepted applications filed during certain months based on the typically earlier "Dates for Filing."

The March 2019 Visa Bulletin is at https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2019/visa-bulletin-for-march-2019.html.