Breaking News 03.26.2018

Premium Processing Suspended for H-1B Cap-Subject Petitions

U.S. Citizenship and Immigration Services (USCIS) announced it will temporarily suspend premium processing for all H-1B petitions subject to the Fiscal Year (FY) 2019 cap, effective April 2, 2018 (the date USCIS begins accepting cap-subject petitions). The suspension applies both to the 65,000 numerical limit (“regular cap”) as well as the 20,000 additional visas available for individuals with a U.S. master’s degree or higher (“Masters cap”). USCIS estimates the suspension will last until September 10, 2018, but in the interim will continue to accept premium processing requests for H-1B petitions not subject to the cap.

During the suspension of premium processing, USCIS indicates that it will consider requests to expedite H-1B petition processing on a case-by-case basis and as a matter of discretion, if the petitioner submits documentary evidence to show they meet one or more of the following “Expedite Criteria”:

  • Severe financial loss to company or person;
  • Emergency situation;
  • Humanitarian reasons;
  • Nonprofit organization whose request is in furtherance of the cultural and social interests of the United States;
  • Department of Defense or national interest situation (These particular expedite requests must come from an official U.S. government entity and state that delay will be detrimental government.);
  • USCIS error; or
  • Compelling interest of USCIS.

Congress Authorizes Increase in H-2B Visa Numbers

On Friday afternoon President Trump signed the $1.3 trillion spending bill passed by both chambers of Congress, despite earlier threats to veto it. Although the bill did not include any relief for DACA recipients, U.S. companies who employ seasonal workers stand to benefit from the bill’s authorization to increase the total number of workers eligible to receive H-2B visas.

The H-2B program allows employers to bring in foreign workers for temporary, non-farm jobs that can’t be filled by U.S. workers willing, qualified, and able to perform such labor. Companies must show that they have the means to pay their workers and that the positions pay a competitive wage. The H-2B program has a statutory cap of 66,000 visas per year divided into a summer season (April-September) and a winter season (October-March), each of which receives 33,000 visas. USCIS receives far more requests per year than there are available visas, and must resort to an unpredictable lottery system that shortchanges U.S. employers.

The bill authorizes the Secretary of the Department of Homeland Security to add up to 100,000 more H-2B visas for “returning workers”, that is, those who have previously been in H2B status, for each fiscal year, but DHS has not yet given any indication of how many more visas will be authorized or procedure for requesting additional visas for this fiscal year.

SEVP To Launch Portal for F-1 and M-1 Students

On March 23, 2018, the Student and Exchange Visitor Program (SEVP) launched the SEVP Portal for F-1 students participating in post-completion optional practical training (OPT) and M-1 students participating in practical training.

The portal will allow these F-1 and M-1 students to report personal and employer information directly to SEVP. Through the portal, these students will be able to:

  • Add or edit their phone number.
  • Add or edit their mailing and physical address.
  • Add or edit their employer information.

Notably, science, technology, engineering and mathematics (STEM) OPT student trainees will not be able to add or change their own employer information. The Form I-983, “Training Plan for STEM OPT Students,” requires the student’s designated school official (DSO) to add employer information. More information is available here.

Trump Administration Considering Visa Restrictions for Chinese Citizens

Two major news organizations are reporting that the Trump administration is considering restrictions on visas for Chinese citizens, including limiting the number of study and work visas and ending a program that allows frequent travelers to the U.S. to get visas that last 10 years. The potential visa reductions are said to be part of a forthcoming package of tariffs and investment restrictions intended to punish China for allegedly violating American intellectual property laws and pressuring U.S. companies to transfer technology.

If the potential visa restrictions become policy, U.S. colleges and universities would suffer negative effects as these institutions depend heavily on Chinese students for bringing in tuition revenue and academic talent: close to a third of all international students in the U.S. are Chinese. China is also the largest source country for visiting scholars to American universities, and legions of scholars originally from China have earned their Ph.Ds. in the U.S. and stayed to pursue their careers.

In addition to the contributions of Chinese students and scholars to science and innovation in the United States, Chinese students alone contributed $12 billion to the U.S. economy last year.

USCIS Reverts to “Last In, First Out” Policy for Asylum Interview Scheduling

On January 29, 2018, U.S. Citizenship and Immigration Services (USCIS) announced it would change its process for asylum interview scheduling, giving priority to recently-filed cases over backlogged cases in order to “deter individuals from using asylum backlogs solely to obtain employment authorization by filing frivolous, fraudulent or otherwise non-meritorious asylum applications,” and then “promptly place such individuals in removal proceedings”.

USCIS will now schedule asylum interviews in the following order of priority:

  • First priority: Applications that were scheduled for an interview, but the interview had to be rescheduled at the applicant’s request or the needs of USCIS.
  • Second priority: Applications that have been pending 21 days or less.
  • Third priority: All other pending affirmative asylum applications will be scheduled for interviews starting with newer filings and working back towards older filings.

As of January 21, 2018, USCIS faced a backlog of 311,000 pending asylum cases, and the backlog has grown by more than 1750 percent over the last five years as the rate of new asylum applications has more than tripled.

“Special Student Relief” Extended for Certain Syrian F-1 Students

The Secretary of Homeland Security has authorized an extension of employment authorization until September 30, 2019 for F-1 nonimmigrant students whose country of citizenship is Syria and who:

(1) were lawfully present in the United States in F-1 nonimmigrant status on September 9, 2016;

(2) are enrolled in an institution that is Student and Exchange Visitor Program (SEVP)-certified for enrollment of F-1 students;

(3) are currently maintaining F-1 status, and

(4) are experiencing severe economic hardship as a direct result of the ongoing civil unrest in Syria since March 2011.

ICE records estimate that this notice would benefit approximately 620 Syrian students.

TPS Extended by 18 Months for Syria

The Secretary of the Department of Homeland Security has announced an extension to the Temporary Protected Status (TPS) designation for Syria. Syrians with TPS status will be eligible to re-register for an extension of their status for 18 months, through September 30, 2019.

There are approximately 7,000 Syrian TPS beneficiaries. This 18-month extension of Syria’s designation for TPS permits current Syrian TPS beneficiaries to re-register for TPS and remain in the United States with work authorization through September 30, 2019. To be eligible for TPS under Syria’s current designation, along with meeting the other eligibility requirements, individuals must have continuously resided in the United States since August 1, 2016, and have been continuously physically present in the United States since October 1, 2016. Syrian individuals present in the U.S. since the time of the previous designation may be eligible to seek other forms of immigration relief.

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