April 5, 2019 marked the conclusion of the H-1B filing season for Fiscal Year 2020. On April 10, USCIS announced that it held the official lottery and selected the 65,000 regular H-1B cap cases and 20,000 master cap cases for processing. Unlike past years, the regular lottery was conducted first followed by the master’s cap lottery. USCIS reported that it received over 201,000 petitions, a 5% increase in applications over last year. The increase, despite increasing pressures exerted by the current administration, demonstrates the continued employment needs of employers.
Our firm has already begun receiving emailed receipts for premium processing cases that have been selected (only change of status H-1B cap petitions are currently eligible). Although we are thrilled to already receive receipts, USCIS has previously confirmed they may not start the processing of these cases until just prior to May 20, 2019. Premium processing for all other cases will be available sometime in June.
We continue to monitor our firm’s bank account for the acceptance of filing fee checks, as acceptance of the checks is an indication of case selection. Similar to past years, we expect to know whether a case has been selected for processing within the next two to four weeks. We will provide more details as they become available. As soon as we can confirm a case has been receipted, we will promptly notify the employer and beneficiary.
The Social Security Administration (“SSA”) has resumed sending No-Match letters to employers informing them that an individual employee’s W-2 forms do not match SSA records. Possible “mismatch” may be caused by administrative error or typo, misspelled names, name change due to marriage, or fraudulent information. The E-Verify program assists in reducing SSN mismatches by checking the names, dates of birth and SSNs of new hires against the SSA’s database. The practice of no-match letters began in 1993, but the SSA stopped notifying employers about SSN matches in 2012. Unlike past No-Match letters, the current letters do not include the Social Security number of employees with mismatched SSNs. Instead, employers are directed to register and use the SSA’s Business Services Online (BSO) database, to identify individuals whose SSNs are mismatched. An employer must act upon receiving a No-Match letter. U.S. Immigrations and Customs Enforcement (ICE) may consider the employer to have “constructive knowledge” of an unauthorized worker if action is not taken. Conversely, employers may be sued for discrimination if they take adverse action solely on no-match letters based on citizenship discrimination. Upon receiving a no-match letter, employers should:
Depending on the reason for the mismatch, additional steps may be necessary to achieve compliance (e.g. termination of employment in the event of identity fraud). Employers who have questions about how to approach the SSA No-Match letters they receive should contact their supporting attorney. We will continue to monitor the return of SSA No-Match letters and update our clients of any noteworthy developments.
Numerous reports have confirmed that U.S. Customs and Border Protection (CBP) has refused to process and adjudicate subsequent L-1 petitions for Canadian applicants at ports of entry and Preclearance locations pursuant to the North American Free Trade Agreement (NAFTA). Despite long-established practice, and without advanced notice, CBP has now taken the position that subsequent L-1 requests fall within the exclusive jurisdiction of USCIS under the misguided interpretation that individuals were seeking “extensions.” L-1 petitions at ports of entry or preclearance sites were often quicker and received a reasonable level of scrutiny compared to filing with USCIS. CBP’s new position is untenable as it appears to lack any legal basis. Unfortunately, CBP appears to be unconcerned with their lack of compliance at present and this matter is being discussed at the highest levels.
It would be our position that a Canadian L-1B beneficiary seeking admission at a port of entry is requesting renewal of their L-1, which is different than requesting an “extension” of their period of authorized stay. Thus, USCIS does not have exclusive jurisdiction and the petition may be processed by CBP. To date, the new policy appears to have been implemented at POEs and Preclearance locations at Winnipeg, Vancouver, Calgary, Montreal, Edmonton, Seattle, Pembina, Warrroad, Pt. Roberts, Sumas, and more. Our team will continue to closely monitor developments and fully evaluate options for employees potentially impacted and recommend how best to approach the case filing.
As of March 22, 2019, USCIS only accepts the recently revised version of Form I-539, Application to Extend/Change Nonimmigrant Status. Children, who are often co-applicants, are now required to sign Form I-539A. Parents and guardians are allowed to sign for children under the age of 14. Furthermore, the primary applicant and co-applicants must now pay an $85 biometric services fee, regardless of age, in addition to the current Form I-539 filing fee. Though biometric services were required for other types of applications, they were not previously required for non-immigrant related processing. So this signals a new step in processing, one that frankly appears to be redundant given the fact that Consulates already collect the same biometric data of visa applicants at time of application, and CBP collects biometric information at time of entry. Presumably since the person who received the visa entered and was confirmed as the same person, we should not have to again check fingerprints simply at the time of renewal/extension. This expansion of biometric collection will likely increase the processing times for each application. At this time, we have heard from several sources that suggest the biometric collection requirements will result in separating I-539 filings from the primary I-129 Petition when premium processing is selected for the primary petition. This slower processing for the dependent I-539 must be kept in mind now when applying for dependent EAD cases.
In effort to increase transparency to the H-1B program, on April 1, 2019, USCIS launched the H-1B Employer Data Hub. With data from fiscal year 2009 through the first quarter of fiscal year 2019, the public will be able to search for H-1B petitioners by fiscal year, NAICS code, employer name, city, state, or zip code and view approval or denial rates. USCIS will update the data hub on a quarterly basis.
The May 2019 visa bulletin has made progress in some categories while other remain unchanged compared to April 2019 in terms final action dates for filing employment-based visa applications. EB-1 Worldwide has advanced to March 1, 2018. EB-1 China and India continued to see no movement, and Philippines advanced to March 1, 2018. EB-2 Worldwide is current. EB-2 China has advanced to May 15, 2016, while India has advanced to April 16, 2009; EB-2 Philippines is current. EB-3 Worldwide is current. EB-3 China has advanced to August 22, 2015, EB-3 India has advanced to July 01, 2009, and EB-3 Philippines has advanced three months to June 1, 2018.
** This newsletter/memo is provided for informational and discussion purposes only. It does not act as a substitute for direct legal contact on an individual basis **