14 January 2020
Category News Room
14 January 2020,
 0

H-1B Filing Season Kick-off

With USCIS implementing changes to the H-1B cap filing process, it’s now time to get the H-1B season filings under way. Over the next week, our attorneys and legal staff will be reaching out to confirm those cases our clients wish to register. we will assist our clients in assessing whether any current employees or pending hires would benefit from obtaining H-1B status. Clients should consider filing H-1B petitions for any current nonimmigrant employees or pending hires who may eventually require H-1B status for continued employment. The list of nonimmigrant categories includes:

  • F-1 students or J-1s who require continued work authorization after their employment authorization or program ends;
  • Individuals holding temporary status such as L-1, TN, E, O, etc.; and
  • Individuals who are work authorized through their dependent status (H-4 EAD or L-2 EAD). It is expected that USCIS will publish regulation to rescind the H-4 EAD program this spring.

Though USCIS has indicated that it would provide instructions on how to complete the registration process, along with key dates and timeline as the registration period nears, the agency has yet to answer many questions, resulting in numerous uncertainties surrounding the new process. In the meantime, we can prepare by taking affirmative steps towards what has been announced.

We will continue to provide updates and guidance as we receive more information from USCIS. Please contact a member of our legal team if you have any questions as we embark on a new era of H-1B cap filings with the implementation of the electronic registration system. Clients are encouraged to attend one of our numerous H-1B Cap webinars being offered by David Brown, our Managing Partner. Please also visit our H-1B Cap memo.

 

2020 Shaping Up to be a Transformational Year

Typically, immigration becomes a wedge-issue in an election year. Politicians campaign on immigration promises without actually doing anything over the course of the year. 2020 is shaping up to be entirely different – while we fully expect political campaigns to be in full spin mode – we do expect significant change this year. To keep up with what is coming Brown Immigration is increasing its outreach efforts. Please be sure to review the webinar and in-person seminar options at the bottom of this email and stay informed with our monthly news blast.

 

Sens. Durbin and Lee Reach Agreement on Fairness Act

By late 2019 the Senate version of the Fairness for High Skilled Immigrants Act (S. 386; “Fairness Act”) was stalled by a hold from Sen. Durbin and his introduction of competing legislation, known as the RELIEF Act. However, on December 18th, 2019, Durbin and Lee announced that they had reached a compromise with new amendments to the Senate bill.

The amended language contains all provisions in the existing bill including the elimination of the per country numerical limitations, a do no harm provision for approved immigrant visa petitions, the three-year transition period, and revisions to the H-1B program, among others. Additionally, the amendment would:

  • Change the effective date of the bill;
  • Allow individuals with an approved I-140 or whose I-140 has been pending for more than 270 calendar days to file for adjustment of status before an immigrant visa number is available and allow for continued work authorization and travel permission. This provision will sunset in nine years form the date of enactment;
  • Provide dependent status protection for H-4 dependent spouse and children, allowing H-4 dependents to maintain pending adjustment status in the event that the principal H-1B dies. Child dependents are also protected from aging out. This provision will sunset in nine years from the date of enactment;
  • Reserve 5.75% for consular applicants resided abroad in countries other than India and China for new arrivals. This provision will sunset in nine years and is in addition to the current three-year transition set-asides; and
  • Prohibit employers that employ 50 or more employees in the U.S. and more than 50% of their U.S. workforce is either in H-1B or L-1 status from hiring more H-1B workers.

While the amendment addresses some of the concerns of foreign nationals not from China or India, in order to make the Act more equitable, the “solutions” presented are merely short-term due to the sunset. In addition, the amendment fails to address the issue of the expected staggering wait times of over seven years for all foreign nationals to receive a green card once the immigrant backlog stabilizes. Furthermore, the prohibition against employers that employ more than 50 or more employees in the U.S. and more than 50% of their U.S. workforce is either in H-1B or L-1 status from hiring additional H-1B workers would have a devastating impact on consulting companies. Yet, with Sens. Durbin and Lee in agreement, the Fairness Act appears to have taken a leap towards more likely passage in the Senate. The prospect of this legislation making it to President Trump’s desk have increased considerably with this latest amendment.

We will continue to follow-up and provide updates regarding this very consequential legislation. In the meantime, we continue to assist our employer clients evaluate the merits of whether pursuing an employment-based green card sponsorship may be advantageous for potentially impacted employees.

 

Naturalization Application Rates Set to Go Through the Roof

Official comments in relation to the proposed fee increase published by USCIS were due on December 30, 2019. The government is now weighing those comments and there are rumblings surrounding possible litigation regarding the fee setting process. While the increases are definitely alarming in some areas, there are only two ways to avoid possible increases – either litigate or file before the rates go up. Sometimes you don’t have options. If the new rates are published and in effect prior to H-1B Cap filing season, then new Cap cases will be subject to these higher rates. However, oftentimes Naturalization is one of those areas where there is choice – and we don’t want our clients to pay a “stupid tax” for filing late. So if you are currently eligible to file for Naturalization or know someone who is, tell them to file now. It is likely we have until the end of February at a minimum before the new fees would be effective, and with a proposed fee increase of $530 per N-400 filing (an 83% increase over the current fee), there are substantial savings to be had in filing the application now. Please email your attorney directly or info@brownimmigrationlaw.com if you may be eligible to file now.

 

USCIS Expands Guidance Related to Good Moral Character

On December 13, USCIS expanded its policy guidance regarding “unlawful acts” that could preclude an applicant from meeting the good moral character (“GMC”) requirement for naturalization. In order to naturalize, an applicant must show GMC during the statutory period immediately preceding his or her application for naturalization up to the time of the Oath of Allegiance.

Previously, the USCIS Policy Manual, did not include extensive information on unlawful acts. Instead, USCIS adjudicators had to rely on subjective determinations of what qualified as a GMC bar to naturalization. With the new guidance, examples of unlawful acts recognized by case law as barring GMC include, but are not limited to the following: bail jumping; bank fraud; conspiracy to distribute a controlled substance, failure to file or pay taxes; falsification of records; false claim to U.S. citizenship; forgery-uttering; insurance fraud; obstruction of justice; sexual assault; social security fraud; unlawful harassment; unlawfully registering to vote; unlawful voting; and violating a U.S. embargo.

Please contact a member of our legal team if you have questions regarding the GMC requirement.

 

Exemptions From Direct Issuance of Form I-20

On January 7, SEVP issued a broadcast message noting when it would grant exemptions from its policy prohibiting issuing Form I-120 to a third party. Generally, designated school officials (DSOs) must issue Form I-120 directly to the F-1 student, parent or legal guardian. However, SEVP will grant exemptions from this policy in specific instances where students reside in countries where U.S. courier services do not operate or when students are in areas with inadequate infrastructure or services that make deliveries generally difficult or would be unsecure. To submit a request, DSOs should contact the SEVP Response Center in writing with the individual student’s name and the circumstances warranting an exemption. SEVP will not grant exemption requests submitted by any other individual or entity.

 

Important Upcoming Learning Opportunities This Month

2019 – In Review; 2020 – Coming Challenges: Because of a technical glitch some registrants were unable to enter the January 9th Webinar – as result we are re-presenting this Thursday January 16th at 1:00 PM CST – if you had hoped to join this program originally, now’s your last chance to sign up for a truly informative program.

REGISTER HERE for 2019 – In Review: 2020 – Coming Challenges

 

H-1B Cap Filing Season: The H-1B Season is ramping up now, to learn what you need to know – both as an HR/Manager and as an employee involved in filing, we will be hosting a variety of short Webinars – the first is January 22nd at 1:00 PM CST.

REGISTER HERE for H-1B Cap Filing Season Webinar

 

Breakfast Briefing on Key Business Immigration Updates for 2020: Additionally, for companies based in the Bay Area, David is taking “2019 – In Review; 2020 – Coming Challenges” presentation on the road. He is presenting at two convenient locations at the end of January – this is an event only for HR/Management – to find more details for each event click the register button.

Tuesday January 28th in San Francisco
REGISTER HERE for WeWork SF – Market & Montgomery

Wednesday January 29th in Santa Clara
REGISTER HERE for SC Plug and Play – 440 North Wolfe Rd

 

** 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 **

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