On December 3, 2018, the Department of Homeland Security (DHS) published a notice of proposed rulemaking (NPRM) that would make changes to the way cap-subject H-1B petitions are processed. There are two proposed changes: first, petitioners seeking to file petitions will have to register electronically with U.S. Citizenship and Immigration Services (USCIS) during a designated registration period; and second, the order in which cap-subject petitions are selected in years when demand exceeds supply has been reversed. These changes are made pursuant to President Trump’s Buy American and Hire American Executive Order, issued in 2017.
As mentioned in our prior post, the Trump administration was due to propose new regulations by the end of February 2018, eliminating the ability of certain H-4 dependents to work. Although it has not yet issued proposed regulations, there is now an updated timeline for that to occur. On September 21, 2018, the Department of Homeland Security (“DHS”) submitted a status report in the ongoing litigation in Save Jobs USA vs. U.S. Department of Homeland Security over the regulation allowing H-4 employment. The status report for the case, which is being held in abeyance pending the issuance of a new rule, indicated that DHS’s proposed rule will be sent to the Office of Management & Budget (“OMB”) for notice and comment within three months.
In a pair of policy memoranda released to the public in July 2018, the Administration is drastically changing the U.S. Citizenship and Immigration Service’s (USCIS, formerly INS) role in adjudications. Initially formed as the immigration benefits-adjudicating sub-agency when the Department of Homeland Security took over immigration functions from the Department of Justice after 9/11, USCIS is typically involved in a very low percentage of the overall enforcement actions of the DHS agencies. (Most enforcement is done by DHS’s other immigration sub-agencies, ICE and CBP.) For example, unless fraud or criminality is suspected, USCIS traditionally has not initiated removal (deportation) proceedings in the course of adjudicating benefits applications, such as nonimmigrant and immigrant visa petitions, applications for adjustment of status to U.S. permanent residence, or naturalizations. However, in a new policy memo released on July 5, 2018 (but dated June 28), entitled Updated Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Deportable Aliens (“NTA Memo”) and effective immediately, the Administration announced that USCIS will now initiate removal proceedings in a wide variety of circumstances.
Today USCIS announced that it received 190,098 H-1B petitions in the filing period that began on April 2. On April 11 USCIS used a computer-generated random selection process (commonly known as a “lottery”) to select a sufficient number of petitions needed to meet the cap. USCIS says that it conducted the selection process for advanced degree exemption petitions first; all advanced degree petitions not selected were then made part of the random selection process for the 65,000 limit. Any petitions not randomly selected will be rejected and returned with the filing fees.
© Jewell Stewart & Pratt PC 2018
U.S. Citizenship and Immigration Services (USCIS) announced today that it has received a sufficient number of H-1B petitions to reach the statutory cap for fiscal year (FY) 2019. USCIS has also received more than 20,000 H-1B petitions filed on behalf of persons exempt from the cap under the U.S. advanced degree exemption. USCIS will not accept H-1B petitions subject to the FY 2019 cap or the advanced degree exemption after today.
On December 18, 2017, U.S. Citizenship & Immigration Services (USCIS) announced a policy change affecting the adjudication of applications for TN visa status under NAFTA.
Background on TN visa status
TN visa status allows citizens of Canada or Mexico to work legally in the U.S. if their employment fits within any of 62 occupational classifications and they have the corresponding educational and/or professional qualifications. One such occupational classification is “Economist.” The full list of eligible occupational classifications is found in Appendix 1603.D.1 of the NAFTA treaty, as well as in the federal regulations at 8 C.F.R. Section 214.6.
In two separate Federal Court decisions issued on October 17, 2017, the majority of the travel restrictions set forth in President Trump’s September 24, 2017 proclamation titled “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into the United States by Terrorists or other Public-Safety Threats” were blocked. As a result, nationals of Iran, Libya, Syria, Yemen, Somalia and Chad will not be restricted from traveling to the United States. However, all immigrants and nonimmigrants from North Korea and certain government officials and their family members from Venezuela traveling on business or tourist visas (B-1/B-2) will continue to be restricted from travel to the U.S. The U.S. Department of Justice has stated that it will appeal these rulings.
© Jewell Stewart & Pratt PC 2017
On September 24, 2017 President Trump announced an extended and enhanced version of the travel ban that was previously in place under Executive Order 13780 (EO-2). The Presidential Proclamation titled “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into the United States by Terrorists or other Public-Safety Threats,” a related Fact Sheet, and FAQs for the new ban are available on the White House website. As with EO-2, the ban affects immigrant and nonimmigrant visa issuance only. Therefore, nationals from the affected countries who already hold visas will not have those revoked. The U.S. Department of State has also announced that previously scheduled visa appointments will not be cancelled.
News Release from Jewell Stewart & Pratt PC – June 5, 2017 As noted in our prior post, the Department of State recently published a Notice of request for emergency approval by the Office of Management and Budget (OMB) for its new form, Form DS-5535, Supplemental Questions for Visa Applicants. The form was designed to collect extra information from visa applicants who have been determined to warrant additional scrutiny in connection with terrorism or other national security-related visa ineligibility.
According to a news report from The Washington Post, Form DS-5535 was approved by the OMB and has been in use at U.S. embassies and consulates since May 25, 2017. A copy of the form is currently available on the U.S. Embassy and Consulates in Turkey website. The extra information it collects includes:
- Countries visited over the last fifteen years
- Email addresses used in the past five years
- Social media handles and aliases used in the past five years
Form DS-5535 is authorized on an emergency basis through November 2017, but as The Washington Post article notes, it is expected to be authorized on a permanent basis.
© Jewell Stewart & Pratt PC 2017
As noted in our prior blog post, a Department of State cable sent by Secretary Tillerson on March 17, 2017 provided immediately effective guidance to all U.S. diplomatic and consular posts regarding the screening and vetting of visa applications.
On May 4, 2017, the Department of State published a Notice of request for emergency OMB approval and public comment on a new Form DS-5535, Supplemental Questions for Visa Applicants. This form would collect information from visa applicants who have been determined to warrant additional scrutiny in connection with terrorism or other national security-related visa ineligibility.