As of May 15, USCIS has completed data entry for all H-1B cap-subject petitions selected for the FY2019 lottery. USCIS has announced it will now begin returning all H-1B cap-subject petitions that were not selected – in recent years we generally don’t expect to see the returned cases until sometime in July. Please see the announcement here.
Over the past several weeks, we have been notifying clients and foreign nationals as we receive receipt notices for their cases. If you have not yet received an email from the legal team member working on your case confirming that it has been accepted, it is likely that your case was not accepted into the H-1B cap – we can also report that we’ve not received confirmation of any new cases being fee receipted (where USCIS takes the filing fees) since Wednesday May 16, 2018. So we are obviously presuming those cases we have not heard on have not been selected in the lottery and will be returned; however, we will not know definitively until the unselected petition is returned by USCIS.
For those clients who have been successful in being selected in the H-1B lottery, we will continue to monitor case activity and update you when we have additional information. For those cases we believe did not get selected, we will begin reaching out to discuss other options for continuing your work authorization. If you have a question about your case, please reach out to the legal team member handling the case to discuss options.
As the summer approaches Immigration and Customs Enforcement (ICE) of DHS has announced it plans to increase employer I-9 audits over the summer. Already seven months into the current fiscal year ICE audits are at a pace more than double last year’s total. ICE has set a goal of reaching 15,000 employer audits per annum and this year they will likely break 4,000. This announcement is a friendly reminder that properly completing and maintaining I-9 forms is important to avoid potential civil fines and other penalties. Please don’t hesitate to reach out should you need help with I-9 and eVerify related matters.
USCIS has recently issued several guidance memos concerning foreign nationals in the U.S. on student or exchange visitor visas. In April 2018, USCIS updated its website regarding STEM OPT extensions, stating that students cannot work at third-party worksite locations under their STEM OPT. They explain that this requirement stems from the concern that ICE, which has the authority to conduct site visits, will not be able to access third-party worksite locations and thus will not be able to accurately monitor compliance with the STEM OPT program. They also believe that students who are placed at third-party worksites will not be properly supervised by the employer, as required by the STEM OPT program. We note that while the I-983 training plan for STEM OPT indicates the student will “receive on-site supervision and training,” it does not specify whether the employer must provide this supervision and if it needs to be in-person. Further, the STEM OPT rule only requires that the student be a bona fide employee of the employer, and third-party contract work on behalf of an employer has been recognized by numerous other governmental agencies as a bona fide employer-employee relationship. This policy update appears to be linked to the Trump administration’s “Buy American, Hire American” executive order that has also encouraged new guidance on H-1B employees placed at third-party worksites. It is our opinion, also shared by AILA, that this new guidance is not in compliance with the implementing regulations and thus is counter to established law. We are advising clients on a case by case basis depending on their specific situation how best to apply this guidance.
On May 11, USCIS issued a policy memorandum changing the rules regarding unlawful presence for F-1 students. For context, unlawful presence begins to accrue when a foreign national stays in the U.S. beyond the end date indicated on the I-94. Because F-1 students’ I-94s’ show D/S (duration of status) as the length of stay, unlawful presence did not previously apply to students until they were found to be “out of status”. However, under the new policy memorandum, beginning on August 8, 2018, individuals in F, J, and M status who fail to maintain their status will begin accruing unlawful presence when one of the following events occurs: 1) The day after DHS denies the student’s request for an immigration benefit with a formal finding that the student violated status while the application was pending; 2) The day after the student’s I-94 expires; 3) The day after an immigration judge orders the student deported; 4) The day after the student is no longer engaged in a course of study or authorized activity, or the day after the student engages in unauthorized activity; or 5) The day after the student completes their course of study or program, including any authorized CPT or OPT plus any authorized grace period. Individuals who accrue more than 180 days are subject to a 3-year bar of re-entry into the U.S., while individuals who accrue more than one year of unlawful presence are subject to a 10-year bar. We encourage anyone currently using these status options to read the new guidance.
Finally, USCIS recently reminded F-1 students who are on OPT that transferring to another school or beginning study at another educational level automatically terminates their OPT as well as their corresponding EAD and work authorization. Though F-1 students’ status will not otherwise be affected by transferring or starting a new higher education program so long as they comply with all requirements for maintaining status, there still could be serious consequences for working with a terminated EAD. As such work is unauthorized, it provides a basis for removal and potential bars on re-entry, as well as violating lawful nonimmigrant status which could lead to accrual of unlawful presence. USCIS has updated its systems and will begin to enter EAD termination dates into its systems. USCIS has indicated it will notify affected students and provide them with an opportunity to correct any errors in the record.
Given this new approach, students should promptly report any planned address change to USCIS so that they will receive timely notification of any EAD termination, especially if such a notice were to be in error.
As the recent updates in policy make clear, USCIS is now taking a closer look at student and exchange visitor visas and corresponding programs, which is consistent with the other actions by the Trump administration to tighten immigration. We are closely monitoring these issues and will continue to provide updates as they become available.
The June 2018 visa bulletin is virtually unchanged from May. The only priority date that has advanced is EB-2 India, which moves forward four days to December 26, 2008. EB-1 China and India remain at January 1, 2012. EB-2 China remains at September 1, 2014. EB 3 China remains at June 1, 2015, EB-3 India remains at May 1, 2008, and EB-3 Philippines remains at January 1, 2017. Please access the current visa bulletin here.
** 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 **