Issue 128 May 2019

USCIS Completes H-1B Cap Random Selection Process for FY 2020, Reaches H-1B Regular Cap and Advanced Degree Exemption Cap

On April 10, 2019, USCIS used a computer-generated random process to select enough H-1B petitions to meet the congressionally mandated regular cap and the U.S. advanced degree exemption for fiscal year (FY) 2020.

USCIS received 201,011 H-1B petitions during the filing period, which began April 1, 2019, including petitions filed for the advanced degree exemption.

The agency will reject and return filing fees for all unselected cap-subject petitions that are not prohibited multiple filings. USCIS will continue to accept and process petitions that are otherwise exempt from the cap.

Details: USCIS announcement, https://www.uscis.gov/news/alerts/uscis-completes-h-1b-cap-random-selection-process-fy-2020-and-reaches-advanced-degree-exemption-cap.

USCIS Launches Data Hub on H-1B Employers

U.S. Citizenship and Immigration Services (USCIS) has launched an H-1B Employer Data Hub to provide information on employers petitioning for H-1B workers. The data hub will allow the public to search for H-1B petitioners by fiscal year (back to FY 2009), NAICS code, employer name, city, state, or zip code.

The new hub gives the public the ability to calculate approval and denial rates and to review which employers are using the H-1B program.

Details: USCIS news alert, https://www.uscis.gov/news/alerts/uscis-launches-h-1b-employer-data-hub; H-1B Employer Data Hub, https://www.uscis.gov/h-1b-data-hub; data broken down by fiscal year, https://www.uscis.gov/tools/reports-studies/h-1b-employer-data-hub-files; summary and description, https://www.uscis.gov/tools/reports-studies/understanding-our-h-1b-employer-data-hub.

Visa Bulletin Shows Slight Forward Progress in Some Backlogged Preference Categories

The Department of State's Visa Bulletin for May 2019 shows slight forward progress for EB-1 for all chargeability areas except China and India, EB-2 for China and India, EB-3 and Other Workers China, India, and the Philippines, and EB-5 China and Vietnam. The remainder of the priority dates remain current with per-country quotas not reached.

Regarding EB-1 for China and India, the bulletin notes a continued "extremely high rate of demand" that may require temporary retrogression until October.

U.S. Citizenship and Immigration Services (USCIS) has announced that the agency will follow the "Final Action Dates" chart for the month for accepting I-485 Adjustment of Status applications.

Details: Visa Bulletin for May 2019, https://bit.ly/2Ur6jNq; USCIS announcement, https://bit.ly/2KQhq2F.

Some POEs Refusing Canadian L-1 Renewal/Extension Petitions Under NAFTA

According to reports, contrary to previous practice, various U.S. Customs and Border Protection (CBP) ports of entry (POEs) and preclearance locations have begun to refuse to process L-1 renewal and extension petitions from Canadians pursuant to the North American Free Trade Agreement. Anecdotally, the affected POEs include Toronto, Winnipeg, Vancouver, Calgary, Montreal, Pearson, Edmonton, Seattle, Pembina, Warroad, Pt. Roberts and Sumas.

Some practitioners have sent their Canadian L's to consular posts instead to file their I-129S (Nonimmigrant Petition Based on Blanket L Petition).

SSA Resumes Issuing No-Match Letters

In March 2019, the Social Security Administration (SSA) resumed mailing notifications to employers identified as having at least one name and Social Security Number (SSN) combination submitted on the wage and tax statement (Form W-2) that do not match SSA's records. The purpose of the letter is to advise employers that corrections are needed.

A no-match letter is not necessarily an indication that a person is unauthorized to work in the United States. SSA noted that there are a number of reasons why reported names and SSNs may not agree with SSA's records, such as typographical errors, unreported name changes, and inaccurate or incomplete employer records.

Details: SSA information for employers, https://www.ssa.gov/employer/notices.html; sample response forms, https://www.ssa.gov/employer/examplenotice.html.

Enforcement of Unlawful Presence Memo Targeting International Students Temporarily Blocked by Federal Judge

On May 3, 2019, a federal judge issued a nationwide order requiring USCIS to temporarily suspend the enforcement of a policy under which F-1/M-1 students and J-1 exchange visitors would begin to accrue unlawful presence as soon as they violate the terms of their visa status.

Students who violate their visa status (and therefore are unlawfully present in the United States) for a certain period of time may trigger a 3- or 10-year entry bar when they leave the country.

For now, this order is encouraging news for affected students because they can rely on the prior USCIS policy of their accruing unlawful presence only after the agency or an immigration judge makes such a finding.

This order stems from a lawsuit brought by a number of universities/colleges, challenging that USCIS' policy memo is unlawful because, among other reasons, the agency did not go through the proper rulemaking process.

Details: Preliminary injunction issued by Federal District Court, http://www.nafsa.org/_/file/_/amresource/guilfordorders20190503.pdf; August 2018 USCIS unlawful presence memo, https://bit.ly/2BBwGvJ

E-2 Investor Visa Program Opened to Israelis May 1

Effective May 1, 2019, the E-2 investor visa program has opened to Israelis under a reciprocal treaty investor agreement signed between the United States and Israel.

Certain Israeli nationals who are lawfully present in the United States can now request a change of status to the E-2 treaty investor classification. The U.S. Embassy in Israel notes that Israeli companies seeking E visas for their owners or employees must apply at the Branch Office in Tel Aviv and establish that the trading enterprise or investment meets the requirements. For both first-time applicants and renewals, the company must submit supporting documents, including the individual application for the employee, by mail.

Details: USCIS announcement, https://www.uscis.gov/news/alerts/israeli-nationals-eligible-treaty-investor-visas; information from U.S. Embassy in Israel, https://il.usembassy.gov/visas/visas-for-treaty-traders/; related news article, https://www.jpost.com/Israel-News/US-investors-in-Israeli-business-to-be-eligible-for-special-Israeli-visa-587815.