H-1B CAP FY2019 NEWS

Starting April 2, 2018, USCIS will begin accepting H-1B petitions subject to the Fiscal Year (FY) 2019 cap. USCIS will temporarily suspend premium processing for all FY 2019 cap-subject petitions, including petitions seeking an exemption for individuals with a U.S. master’s degree or higher. This suspension is expected to last until Sept. 10, 2018. During this time, USCIS will continue to accept premium processing requests for H-1B petitions that are not subject to the FY 2019 cap. USCIS will notify the public before resuming premium processing for cap-subject H-1B petitions or making any other premium processing updates.

Important Update: USCIS Is Now Not Considering Changes to the H-1B Extension Rules

In a news update made available late yesterday, the McClatchy DC news service reported that the U.S. Citizenship and Immigration Services (USCIS) has stated that it not considering a regulatory change to the H-1B extension rules, as had previously been reported in a December 30, 2017 article by McClatchy DC. In particular, USCIS stated to McClatchy DC that the agency is not considering changing its interpretation of section 104(c) of the American Competitiveness in the Twenty-First Century Act (AC21), which provides for H-1B extensions beyond the six-year limit for H-1B workers who have reached certain milestones in the green card process. USCIS went on to note that “such a change would not likely result in these H-1B holders having to leave the United States because employers could request extensions in one-year increments under section 106(a)-(b) of AC21 instead.”

Department of Homeland Security (DHS) Considering Changes to H-1B Extension Rules

DHS is reportedly considering new regulations that would limit the ability of H-1B workers who are in the lawful permanent residence (LPR) process to obtain an extension of their H-1B status beyond the usual six-year limit of authorized stay. The reported proposal, which arises from President Trump’s “Buy American, Hire American” executive order, could impact thousands of H-1B workers and their families, many of whom have been waiting in line for a green card for years.

Under current law, the American Competitiveness in the Twenty-First Century Act (AC21) has two provisions, section 104(c) and section 106(a), which enable DHS to grant an H-1B extension to an H-1B worker who has reached the six-year limit if certain milestones in the LPR process are met such as having an approved I-140 petition but stuck in a quota backlog and not eligible for LPR filing or approval.

To date, DHS has not issued a proposed regulation or formal announcement regarding its intention to change its long-standing practice in adjudicating H-1B extensions under AC21. For DHS to implement such a change, it would need to issue a proposed regulation and follow the notice and comment rulemaking procedures set forth in the Administrative Procedure Act. That could take months. Any policy change before that could be subject to litigation. Moreover, any final rule could also be subject to litigation.

Potentially Very Bad News for H-4 EAD Holders

The San Francisco Chronicle reports on plans by the Trump administration to overturn a rule allowing the spouses of H-1B holders, who hold H-4 visas, to receive work permits. DHS is currently facing a lawsuit challenging the right of H-4 visa holders to work in the United States, but the administration has delayed the decision in this case while, according to the Chronicle, it drafts a new regulation to rescind work authorization for H-4 visa holders.

USCIS Resumes Premium Processing for H-1B Visas

U.S. Citizenship and Immigration Services (USCIS) resumed premium processing today for all H-1B visa petitions subject to the Fiscal Year year (FY) 2018 cap. Premium processing has also resumed for the annual 20,000 additional petitions that are set aside to hire workers with a U.S. master’s degree or higher educational degree.

USCIS plans to resume premium processing for all other remaining H‑1B petitions not subject to the FY 2018 cap, as agency workloads permit.