USCIS Announces that It May End Practice of Denying Pending Forms I-131 for Abandonment Due to International Travel
In 2017, USCIS began to deny pending Form I-131 Advance Parole applications when an applicant departed the U.S. while his/her application was pending. USCIS Director L. Francis Cissna recently indicated that USCIS may end this practice. However, the Director did not provide a timeline for the issuance of a new policy.
In the meantime, individuals with pending I-485 Adjustment of Status applicants should continue to carefully consider the timing/impact of any travel plans and consult with legal counsel before finalizing their travel plans. H and L visa holders may also wish to maintain the validity of their nonimmigrant visas. Otherwise, until USCIS issues an updated policy, it remains necessary to plan travel around lengthy I-131 processing times.
Newly Proposed H-1B Cap Selection Process – Comment Period Closes on 01/02/2019
The Department of Homeland Security has proposed a new rule that would require petitioners seeking to file H-1B petitions subject to the regular cap, including those eligible for the advanced degree exemption, to first electronically register with U.S. Citizenship and Immigration Services (USCIS) during a designated registration period. DHS also proposes to reverse the order by which USCIS selects H-1B petitions under the H-1B cap and the advanced degree exemption, likely increasing the number of beneficiaries with a master’s or higher degree from a U.S. institution of higher education to be selected for an H-1B cap number.
DHS is currently accepting comments on the new rule until 01/02/2019. After the comment period closes, DHS will review the comments and a final rule is expected to follow. At this time, DHS has not yet indicated when the issuance of a final rule is expected. The agency is actively working to develop and test the electronic registration system, but if there is insufficient time to implement the system for the FY 2020 cap selection process, USCIS has the ability to suspend the registration requirement. However, USCIS could still reverse the selection order (giving preference to beneficiaries with a master’s or higher degree from a U.S. institution of higher education) even if the registration requirement is suspended.
In the weeks to follow the close of the comment period on 01/02/2019, employers will need to await the issuance of the final rule. USCIS has suggested that it will likely post updates on the USCIS website; DHS is also considering announcing the opening date of the first registration in the final rule.
Department of Labor Provides Resources to Explain New Changes to Labor Condition Application (LCA) ETA Form 9035/9035E
As highlighted in a previous alert, employers are now required to use the Department of Labor’s newest version of the Labor Condition Application (LCA) ETA Form 9035/9035E. Among several changes to the LCA, employers are now required to disclose whether the worker(s) will be placed with a secondary entity at the worksite location(s), and disclose the identity of any secondary entity. The Department of Labor recently released a Fact Sheet and a Side-by-Side Comparison Chart to help explain these changes.
The revised instructions for the new LCA also clarify that employers are required to disclose the estimated number of workers to be assigned to each place of employment of the total number of positions covered by the LCA (not of the employer’s total workforce).
USCIS Reaches H-2B Cap for First Half of FY2019
USCIS announced that that the H-2B cap for the first of half of FY2019 was reached on December 6th. USCIS will reject new cap-subject H-2B petitions received after 12/6/18 that request an employment start date before 4/1/19.
Because the number of beneficiaries USCIS received petitions for surpassed the total number of H-2B visas available for the first half of FY2019, USCIS conducted a lottery to randomly select petitions for the first half of the fiscal year.
Currently, Congress has set the H-2B cap at 66,000 per fiscal year, with 33,000 for workers who begin employment in the first half of the fiscal year (October 1 – March 31) and 33,000 for workers who begin employment in the second half of the fiscal year (April 1 – September 30).
Recent UCSIS Adjudication Trends in Response to Inconsistent Decisions
Employers have long experienced inconsistencies in USCIS’ adjudications, where one petition is approved and a subsequent petition involving the same facts is denied. When this happens, many employers are tempted to highlight the discrepancy when responding to a Request for Evidence (RFE) or a Notice of Intent to Deny (NOID), or preparing a Motion for Reconsideration. Recent reports have indicated that, rather than reopening and/or approving the case at issue, USCIS has started to reopen and subsequently deny the previously approved petition(s). Accordingly, employers should avoid relying on previous approvals when responding to a Request for Evidence (RFE) or a Notice of Intent to Deny (NOID), or preparing a Motion for Reconsideration, and should instead focus on documenting the case at issue to extent possible.
USCIS Issues New Policy Memo on When Officers Should Consider Waiving the Interview Requirement for Form I-751, Petition to Remove Conditions on Residence
Foreign nationals who obtained resident status through marriage to a U.S. citizen or lawful permanent resident are granted lawful permanent resident status on a conditional basis (if their qualifying marriage was less than two (2) years old at the time of time of admission or adjustment of status). To avoid having their status terminated after two (2) years, conditional permanent residents must request that USCIS remove the conditions on their lawful permanent resident status by filing a Form I-751. Generally, USCIS must interview the conditional permanent resident before conditions can be removed. USCIS can, in certain situations, waive the interview requirement.
USCIS has released a new policy memorandum that clarifies when USCIS will consider granting an interview waiver. The new policy applies to all Form I-751 petitions filed on or after 12/10/18.
USCIS Issues New Policy Memo on Sufficiency of Medical Certification for Disability Exceptions (Form N-648)
As part of the naturalization process, most applicants are required to pass a civics and English test. In 1994, Congress enacted legislation providing an exception to the civics and English test for naturalization applicants who cannot meet the requirements because of a physical or developmental disability, or mental impairment. This requires the filing of a Form N-648, completed and certified by a medical professional.
USCIS has released a new policy memorandum that clarifies the filing procedures and adjudication policies on requests for Medical Certification for Disability Exceptions. In particular, the memo clarifies that the Form N-648 must be submitted with the N-400 Application for Naturalization and that late filings require a credible explanation (i.e., a subsequent change in medical condition).
Visa Bulletin for January 2019
The Department of State has published its Visa Bulletin for January 2019. There will not be any movement in the EB-1 or EB-2 filing dates for Indian nationals (which will remain at October 1, 2017 and May 22, 2009, respectively). There will, however, be some modest advancement in EB-3 filing dates for Indian and Chinese nationals.
USCIS has also confirmed the Dates for Filing (DF) chart is to be used for all family- and employment-based categories. Thus, in January 2019, USCIS will continue to accept family based and employment-based adjustment applications from foreign nationals with a priority date that is earlier than the “Dates for Filing” listed in the January Visa Bulletin.