Issue 131 August 2019

Changes to H-1B Cap Season Coming in 2020

Beginning with fiscal year 2021 H-1B cap-subject petitions, USCIS is expected to implement an electronic registration requirement, which will require petitioners seeking to file H-1B petitions subject to the cap to first electronically register with USCIS during a designated registration period.  Petitioners will no longer be required to prepare and file complete petitions for every petition submitted in the lottery.  Rather, petitioners will be required to submit certain information when electronically registering to allow USCIS to conduct the lottery and select enough H-1B petitions to receive and adjudicated under the cap.  Once USCIS completes the lottery, only those with a selected registration will be eligible to submit an associated cap H-1B petition. 

Please note that there remains a lot of uncertainty regarding this new process, including exactly when registration will open, and how much time employers can expect to have to prepare and file petitions once they have been selected. Although USCIS has not yet provided specific details about the implementation of the electronic registration process, the published final rule tells us the basics of what to expect.    

The electronic registration process will start before April 1, in advance of the period during which H-1B petitions can be filed for the new fiscal year.  The registration period will begin at least 14 calendar days before the first day of filing and would last for a minimum period of fourteen calendar days.  USCIS will announce the start date of the initial registration period on the USCIS website at least 30 days in advance of the opening of the registration period.  USCIS will also announce the final registration date on the USCIS website. 

Each electronic registration submitted by the petitioner will likely need to include at least the following basic information:

  • Employer’s name, employer identification number (EIN), and employer’s mailing address;
  • Employer’s authorized representative’s name, job title, and contact information;
  • Beneficiary’s full name, date of birth, country of birth/citizenship, gender, and passport number;
  • Whether the beneficiary has obtained a U.S. Master’s degree or higher; and
  • Employer’s attorney (electronic submission of Form G-28 may be required).

The petitioner will also be required to attest that the petitioner intends to employ the beneficiary consistent with the registration.  Each petitioner who submits a properly completed H-1B cap registration request online would receive an automatic electronic notification that the registration request has been received by USCIS. 

USCIS will notify all petitioners with selected registrations that the petitioner is eligible to file an H-1B cap-subject petition on behalf of the named beneficiary within the designated filing period. If the petitioner’s registration was selected, the notice will indicate a filing location and the designated filing period during which the H-1B petition must be filed, and provide instructions on how to file.  USCIS will provide for at least 90 days to file a petition for which a registration has been selected, and USCIS will notify all petitioners of the exact amount of time allowed for filing the petition.  As is allowed under current regulations, petitioners will be able to file a petition based on a selected registration as much as 6 months prior to the start date.

Chin & Curtis, LLP will continue to monitor developments regarding the electronic registration process and will provide updates as additional information becomes available.

State Dept. Establishes, Retrogresses August Employment-Based Final Action Dates

The Department of State's Visa Bulletin for August 2019 notes a steadily increasing level of employment-based applicant demand since late May for adjustment-of-status cases filed with U.S. Citizenship and Immigration Services, with no indication that this increase will end in the near future. Therefore, the bulletin states, "it has been necessary to establish or retrogress many of the August Final Action Dates in an effort to hold worldwide number use within the maximum allowed under the respective FY-2019 annual limits."

The implementation of these dates is expected to be temporary. For October, the first month of fiscal year 2020, the agency said "every effort will be made to return these final action dates to those which applied for July."

Details: Visa Bulletin for August 2019, https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2019/visa-bulletin-for-august-2019.html

USCIS Returns Unselected Fiscal Year 2020 H-1B Cap-Subject Petitions

USCIS announced on August 15, 2019 that it has returned all fiscal year 2020 H-1B cap-subject petitions that were not selected in the computer-generated random selection process. 

House Passes Bill to Eliminate Per-Country Cap on Employment-Based Immigrants

The U.S. House of Representatives passed the "Fairness for High-Skilled Immigrants Act of 2019" (H.R. 1044) on July 10, 2019. The bill, introduced by Reps. Zoe Lofgren (D-CA) and Ken Buck (R-CO), would eliminate the per-country cap (numerical limitation) on employment-based immigrants and raise family-based per-country caps from 7 to 15 percent. The per-country cap provision would be implemented over a three-year phase-in period: during year one, no more than 85 percent of employment-based visas could be allocated to India or China; in years two and three, no more than 90 percent of employment-based visas could be allocated to those countries. An additional provision protects people who have immigrant visa petitions approved before September 30, 2019. The legislation is expected to benefit primarily Indian and Chinese workers, who constitute the largest proportion of H-1B skilled workers waiting for years in the U.S. green card backlog.

The bill will be considered by the Senate next. The Senate version, S. 386, was recently blocked by Rand Paul (R-Ky.), who said he wants to amend the bill with an accommodation for EB-3 nurses. Other recent developments on the Senate side included the addition of provisions strengthening H-1B specialty occupation enforcement requested by Sens. Mike Lee (R-Utah) and Charles Grassley (R-Iowa). Although the bill has bipartisan support, it is unclear whether it has a chance of passage.

As a result of this uncertainty, Chin & Curtis does not currently believe that the passage of H.R. 1044 constitutes a reason for our clients to depart from normal company polices concerning green card sponsorship.   Chin & Curtis is actively monitoring these bills and will provide further updates should our recommendation change.

Details: Text and history of the House version, https://www.govtrack.us/congress/bills/116/hr1044; Senate version of the bill, http://src.bna.com/JDP; news reports, https://news.bloomberglaw.com/daily-labor-report/green-card-cap-legislation-remains-blocked-despite-h-1b-deal, https://www.deseretnews.com/article/900077471/mike-lee-kamala-harris-rand-paul-immigration-reform-bill-blocked.html, https://www.businesstoday.in/current/economy-politics/us-congress-to-vote-on-bill-to-lift-country-cap-on-green-card/story/362812.html

USCIS Amends EB-5 Regulations, Raising Minimum Investment Amounts and Modifying TEA Designations

U.S. Citizenship and Immigration Services (USCIS) has published a final rule, effective November 21, 2019, amending the regulations governing the employment-based fifth preference (EB-5) immigrant investor classification and associated regional centers to reflect statutory changes and "modernize" the EB-5 program. The final rule provides priority date retention for certain EB-5 investors, increases the required minimum investment amounts, changes the targeted employment area (TEA) designation process, and clarifies USCIS procedures for the removal of conditions on permanent residence.

Among other things, the final rule:

  • Clarifies that the priority date of a petition for classification as an investor is the date the petition is properly filed
  • Clarifies that a petitioner with multiple approved immigrant petitions for classification as an investor is entitled to the earliest qualifying priority date
  • Retains the 50 percent minimum investment differential between a TEA and a non-TEA instead of changing the differential to 25 percent as proposed, thereby increasing the minimum investment amount in a TEA from $500,000 to $900,000 rather than $1.35 million, as DHS initially proposed (the minimum non-TEA investment will be $1.8 million)
  • Bases future inflation adjustments on the initial investment amount set by Congress in 1990 rather than on the most recent inflation adjustment
  • Modifies the original proposal that any city or town with a population of 20,000 or more may qualify as a TEA, to provide that only cities and towns with a population of 20,000 or more outside of metropolitan statistical areas may qualify as a TEA, eliminates a state's ability to designate certain geographic and political subdivisions as high unemployment areas, and gives the Department of Homeland Security responsibility for directly making TEA designations "based on revised requirements in the regulation limiting the composition of census tract-based TEAs"

Practitioners are expecting a rush on EB-5 investments in the months before the effective date of November 21, 2019, which could increase the already long waits for EB-5 visas for those from high-volume countries by years, assuming Congress does not allocate additional visa numbers or eliminate per-country caps.

Details: USCIS announcement, https://www.uscis.gov/news/news-releases/new-rulemaking-brings-significant-changes-eb-5-program; Final rule, https://www.federalregister.gov/documents/2019/07/24/2019-15000/eb-5-immigrant-investor-program-modernization

House Holds Hearing on USCIS Policy Changes, Processing Delays

On July 16, 2019, the House of Representatives held a hearing on policy changes and processing delays at U.S. Citizenship and Immigration Services (USCIS). Witnesses included representatives from USCIS, the American Immigration Lawyers Association (AILA), Catholic Legal Immigration Network (CLINIC), the Immigrant Legal Resource Center, and the Center for Immigration Studies. Statements were also submitted by various organizations.

Regarding policy changes, Jill Marie Bussey, CLINIC's Director of Advocacy, cited the expansion of in-person interview requirements and related "extreme vetting," new rules on requests for evidence and notices of intent to deny, elimination of the 90-day processing requirement for employment authorization documents, information services "modernization" that includes narrowing of the options and points of access for stakeholders to request information and services regarding their pending cases, the ending of self-scheduling of in-person InfoPass appointments at field offices, and diverting resources to enforcement-focused activities. All of these policy changes, she said, are contrary to USCIS's mission, contribute to backlogs and inefficiencies, and create unnecessary barriers for applicants and their legal representatives, are not justified by data, and thus have contributed to significant consequences and cascading effects for employers, legal service providers, individuals and families, and USCIS and other agencies.

With respect to processing delays, Marketa Lindt, AILA President, testified that USCIS's average case processing time surged by 46 percent from FY 2016 to FY 2018 and by 91 percent from FY 2014 to FY 2018. "[I]n FY 2018 the agency processed 94 percent of its benefit form types more slowly than in FY 2014. For many of these form types, processing times more than doubled in recent years, and some tripled. This past fiscal year, the agency's overall backlog of delayed cases exceeded 5.69 million, a 69 percent increase over FY 2014.”

Details: Hearing testimony and statements, https://bit.ly/2LWUAp8

USCIS Ombudsman Says EAD Help Requests Constituted Single Largest Source of Work in 2018, Recommends Changes to H-1B Program Implementation Under BAHA

The U.S. Citizenship and Immigration Services (USCIS) Ombudsman recently released its 2019 Annual Report.

The report notes that requests for help related to employment authorization documents (EADs) constituted the single largest source of work for the Ombudsman's Case Team in calendar year 2018—over a third of its total case load. During a four-month period between December 2017 and March 2018, the number of incoming EAD cases spiked 400 percent, most related to processing delays.

The Ombudsman also noted that it explored in depth the H-1B visa program. The lengthy, detailed H-1B section includes 290 footnotes and several recommendations for changing implementation of the H-1B program by USCIS and the Department of Labor to align with President Trump's "Buy American and Hire American" (BAHA) executive order.

Details: USCIS Ombudsman's Annual Report for 2019, https://www.dhs.gov/sites/default/files/publications/19_0712_cisomb_2019_ombudsman_annualreport.pdf; BAHA order, https://www.whitehouse.gov/presidential-actions/presidential-executive-order-buy-american-hire-american/

USCIS Announces Changes to Naturalization Test

On July 19, 2019, U.S. Citizenship and Immigration Services (USCIS) announced that it is revising the current naturalization test in English and civics.

In December 2018, USCIS formed a naturalization test revision working group with members from across the agency. The working group is reviewing and updating the naturalization test questions. The group will also assess potential changes to the speaking portion of the test. USCIS said it "is soliciting the input of experts in the field of adult education to ensure that this process is fair and transparent." Details of the changes being considered were not released. USCIS plans to pilot the test revision this fall, and to set an implementation date in December 2020 or early 2021. USCIS is also formalizing a decennial revision process to allow for updates every 10 years. Critics have expressed concerns that the announcement is a continuation of efforts by USCIS to make naturalization more difficult, including dramatically slowing down the processing of naturalization applications.

Details: USCIS announcement, https://www.uscis.gov/news/news-releases/uscis-announces-plan-improve-naturalization-test; USCIS memorandum on the revisions, https://bit.ly/2xY4XAM

USCIS Publishes Final Rule on Inadmissibility on Public Charge Grounds

USCIS published an advance copy of a final rule that will prescribe how DHS will determine inadmissibility to the United States based on an individual’s likelihood of becoming a public charge. The rule will be published on August 14, 2019, and will go into effect 60 days later, on October 15, 2019. Applications and petitions that are postmarked before the effective date will not be subject to the rule.

The DHS final rule dramatically changes the standard by which the Department determines whether an applicant for adjustment of status or admission is "likely at any time to become a public charge" and therefore inadmissible to the United States (note that some noncitizens, such as asylees and refugees, are exempt from public charge determinations). Under the final rule at 8 CFR 212.21(a), USCIS removes the consideration of whether an individual is primarily dependent on public benefits, redefining public charge as a noncitizen who receives a specified public benefit for more than 12 months in the aggregate within any 36-month period (such that, for instance, receipt of two benefits in one month counts as two months).

The final rule defines a public benefit as:

  1. Any federal, state, local, or tribal cash assistance for income maintenance, including:
    1. Supplemental Security Income (SSI);
    2. Temporary Assistance for Needy Families (TANF);
    3. Federal, state, or local cash benefits programs for income maintenance (often called "General Assistance" in the State context, but which also exist under other names);
  2. Supplemental Nutrition Assistance Program (SNAP);
  3. Section 8 Housing Assistance under the Housing Choice Voucher Program;
  4. Section 8 Project-Based Rental Assistance (including Moderate Rehabilitation);
  5. Medicaid, with certain exceptions; and
  6. Other forms of public housing.

The DHS final rule, which is vastly more restrictive than current policy, could result in significantly higher USCIS denial rates of adjustment of status applications subject to public charge determinations.