Today March 18, 2019 is two weeks prior to the opening of the H-1B Cap FILING season. Those individuals who will file against the Cap must do so between April 1st and April 5th. We are now prioritizing H-1B cases over other filings and will do so for the next three weeks – frankly it’s the only way we can ensure that all H-1B case are finalized and filed on time. We will continue to progress on Non-H-1B Cap cases, but our work on those cases will slow down as we move closer to the filing deadline and are forced to prioritize H-1B Cap cases in the last 10 days.
Similar to prior years, we are performing redundant reviews of both our LCA filings and H-1B filings – meaning all core aspects of H-1B filings will receive review by two attorneys. We do this to ensure that there is no chance of improper rejection and to ensure all case filings are as strong as possible. We know there is only one opportunity to get it right and we are committed to ensuring success.
To put recently leaked government statistics into perspective, the current administration is issuing a Request for Evidence (RFE) on roughly 60% of all H-1B filings received in 2018, whereas the prior administration RFE’d roughly 12-30% of cases depending on the quarter. Further, whereas the prior administration denied roughly 4-6% of H-1 filings, recent information confirms a 24% denial rate! Put another way, 4 out of 10 cases that receive an RFE are denied. Our experience reflects a clear shift, although thankfully much better than the reported averages – where we used to get RFE’s 8-10% of the time, we now receive RFEs roughly 40% of the time, and where we received no denials under the prior administration, we received denial in 4% of our H-1B filings against the most recent cap. While we believe every case denied is a clear mistake made by the government – that every case should have been approved with a proper application of the law – the fact is we are still receiving approval of nearly every case we file. In 2017 we received a 10% denial rate on H-1B Cap filings, and we’ve now reduced that rate by 60% at a time when denials are actually on the rise. While the government lacks legitimacy in denying as many cases as it does, we are comfortable we are doing everything we can to anticipate and respond to government misinterpretation, and ensure success and limit exposure to our clients, and that the numbers we are experiencing reflect this. Ensuring approval of every case is not easy – our case filings routinely exceed 400 pages! Just 2 years earlier they were no more than 150 pages, so this is a significant change.
Just know that we are committed to the success of our clients in everything we file. We’ll do our best to file your H-1B cleanly to give you the best chance of success. And for those clients who wait an extra week to file their case while we prioritize H-1B filings, know that your case is important to us, and that we want to ensure we spend an appropriate amount of time dedicated to your filing as well. Not only are H-1Bs under pressure, but L-1Bs also face a likely 30%+ denial rate at USCIS (we are waiting for an updated government report or leaked memo to confirm this), and we want to ensure that we always maximize our client’s chance of success.
Given that we are so close to the filing window opening we ask that all clients do a final check of recent hires to determine if an H-1B Cap filing makes sense. If you feel you have a need, please reach out to our team immediately. And if you are late to recognizing the issues related to the H-4 EAD, read our below story and contact us, as we expect that status option will be gone by the end of the Summer making an H-1B Cap filing the best course of action to maintain work authorization.
Please don’t hesitate to ask our team if you have an H-1B case related questions, and of course we always invite you to access our self-service information on our website to further educate you on these issues.
United States Citizenship and Immigration Services (“USCIS”) announced the resumption of premium processing for all pending and to be filed H-1B petitions on March 12, 2019, thus ending the hold on premium processing of H-1B petitions. However, the USCIS Service Center Operations Directorate (“SCOPS”) was quick to clarify that this announcement did not include upcoming H-1B Cap filings and that the availability of premium processing for FY 2020 H-1B cap petitions would be addressed in a future announcement. In other words, expect that USCIS will put a hold on premium processing of H-1B Cap filings in the next two weeks, similar to what it has done the past three years. We will provide an update if/when USCIS announces a decision on premium processing of H-1B Cap petitions.
In February 2015, under the previous administration, the Department of Homeland Security (“DHS”) published a final rule extending eligibility for employment authorization to certain H-4 dependent spouses of H-1B nonimmigrants who are in the process of obtaining employment-based lawful permanent residence status. The regulation was established to relieve the financial burden of families having to rely solely on the income of H-1B visa holders when the family was subject to a long backlog related to Green Card filing. In other words, other H-4 visa holders were eligible for work permits based on AOS filing and they received significantly quicker Green Card processing, while those in the Immigrant Visa backlog (primarily those born in China and India) had to wait and wait for a spousal work authorization, and this rule addressed that disparity. Since its publication, over 100,000 Employment Authorization Documents (“EAD”) have been issued to H-4 spouses. Consistent with other actions the present administration has taken on immigration, in 2018, DHS expressed its intent of rescinding employment authorization for certain H-4 spouses publicly in many forums and most recently in the Unified Agenda of Regulatory and Deregulatory Actions and Regulatory Plan in the fall of 2018. Recently, on February 20, 2019, U.S. Citizenship and Immigration Services (“USCIS”) submitted the proposed H-4 EAD rescission regulation to the Office of Management and Budget (“OMB”). Once the OMB completes its review, the proposed regulation will be open to the public for a comment period for either 30 or 60-days. After the comment period closes, the regulation will undergo additional review before it is signed by the DHS Secretary and published in the Federal Register. It is anticipated that no new EAD applications filed after issuance of the regulation will be accepted as this status will be stricken from the regulation. What is unknown at this time – what will happen to the 100,000 individuals who currently hold an H-4 EAD. We won’t know the answer to that question until we see the final regulations. Presently, the H-4 EAD program remains in effect. Thus, eligible H-4 spouses are advised to file their initial or renewal applications as soon as possible. As a reminder, USCIS generally will not accept renewal applications filed earlier than six months prior to the current EAD expiration date.
If you hold an H-4 EAD and have not previously prepared a filing for the H-1B Cap this year, you should immediately contact your employer and get approval to file in this years’ H-1B Cap. If you are a corporate client of ours and have not reviewed employees who currently hold an H-4 EAD for inclusion in the H-1B Cap, please do so today and let us know if you have someone holding this status.
The Department of Homeland Security (“DHS”) Office of Inspector General (“OIG”) recently issued a fraud alert warning the public of reports that DHS numbers have been used as part of a telephone spoofing scam targeting individuals throughout the country. The scammers alter caller ID systems to make it appear as though their number is coming from the DHS HQ Operator number (202-282-8000) or the DHS Civil Rights and Civil Liberties (CRCL) number (202-401-1474). They represent themselves as employees with “U.S. immigration” or other government entities. In addition to attempting to solicit personal identifiable information from their victims, using various tactics, the scammers threaten victims with arrest unless payments are made. They have also emailed victims from email addresses ending in “uscis.org.”
Individuals are reminded that DHS never uses its HQ Operator or CRCL number to make outgoing calls soliciting personal information or payment. Anyone who believes they may have been a victim is advised to call the DHS OIG Hotline (1-800-323-8603) or file a complaint online at DHS OIG’s website.
On March 1, 2019, to comply with the U.S. District Court for the Northern District of California’s preliminary injunction, which enjoined the Department of Homeland Security (DHS”) from implementing and enforcing the decisions to terminate Temporary Protected Status (“TPS”) for numerous countries, DHS automatically extended the TPS and related documentation for beneficiaries from Sudan, Nicaragua, Haiti, and El Salvador through January 2, 2020. Affected employees may present their unexpired EADs, facially expired EADs with individual notices that auto-extend those EADS, or facially expired EADs that are specified in the March 1, 2019 Federal Register Notice in order to establish ongoing employment authorization. El Salvadorans whom previously received Notices of Continued Evidence of Work Authorization (“NCEWA”), which extended their work authorization through March 4, 2019, may use the Federal Register Notice in combination with their current expired EAD as evidence of work authorization. It is imperative that employers timely, and correctly, update affected employees’ Forms I-9 to avoid fines and penalties. Please contact a member of our team if you have any questions regarding whether a TPS beneficiary’s status was auto-extended or require assistance with updating Forms I-9.
The April 2019 visa bulletin has made more notable progress in some categories than others compared to March 2019 in terms of dates for filing employment-based visa applications. EB-1 Worldwide has advanced to February 1, 2018. EB-1 China and India saw no movement, and Philippines advanced to February 1, 2018. EB-2 Worldwide is current. EB-2 China has advanced three months to April 1, 2016, while India has advanced to April 12, 2009; EB-2 Philippines is current. EB-3 Worldwide is current. EB-3 China has advanced to August 1, 2015, EB-3 India has advanced to June 22, 2009, and EB-3 Philippines has advanced three months to March 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 **