H-1B CAP CASE NEWS

The Department of Homeland Security (DHS) today announced a notice of proposed rule-making that will require employers seeking to file H-1B cap-subject petitions to pay a $10 fee for each electronic registration they submit to USCIS. This is the new method to handle H-1B cap cases beginning in FY2021.  If the case is selected in the lottery based on this registration system, the employer will then file the H-1B petition application in its entirety with USCIS.  More information from DHS will be forthcoming.

SEPTEMBER 2019 VISA BULLETIN NEWS

Even though the September Visa Bulletin indicates cut-off dates for the EB-3 category, the State Department has advised that the entire EB-3 category is now “unavailable” for the remainder of FY2019.

Department of State’s Charlie Oppenheim provides the following analysis of the September Visa Bulletin.

· EB-1 and EB-2 categories could become “unavailable” at any time before the end of the fiscal year.

· We should not expect any of the EB-1 categories to become current at any time in the foreseeable future. Hopefully the EB-1 Worldwide and EB-1 China dates will revert to where they were in July 2019, it is possible they will not fully recover. EB-1 India and EB-1 China may not recover for the foreseeable future.

· Nothing too significant of note for the family-based categories.

· Unlike the other employment-based preference categories, the demand trends for EB-2 are such that Charlie is more confident that the Final Action Dates for this category (i.e., EB-2 Worldwide, including EB-2 El Salvador, Guatemala and Honduras, EB-2 Mexico, EB-2 Philippines, and EB-2 Vietnam) will be able to recover to current in either October or November 2019.

· Charlie is unable to say when EB-2 Worldwide, El Salvador, Guatemala, Honduras, Mexico, Philippines and Vietnam will again be current.

Further, per USCIS, adjustment of status applicants in the F2A category may file in September using the Final Action Dates for September. All other family-based preference categories must use the Dates for Filing chart.

For Employment-Based Preference filings, the Final Action Dates chart must be used for September adjustment of status filings.

Form I-539 News

In the past when an I-539 was filed simultaneously with an H-1B petition that requested premium processing, USCIS as a courtesy would typically adjudicate the I-539 in about 15 days as well.  However, because of the new biometrics requirement for all I‑539 applicants, USCIS has discontinued this practice. Currently, USCIS processing time for an I-539 is 3-8 months, depending upon where the case is filed.  In some cases, it may be strategically advantageous to consular process for a new H-4 visa as opposed to filing the I-539.  Discuss what is best in your situation with the attorney.

I-94 RECORD UPDATE

Beginning in May 2019, I-94 numbers will be alphanumeric. Currently, I-94 numbers are 11 digits long and only contain numbers.  I-94 numbers will remain at 11 characters but will follow the format of 9 digits, followed by a letter in the 10th position, and a digit in the 11th position.

FY2020 H-1B CAP News Update

On May 20, USCIS will begin premium processing for FY 2020 cap-subject H-1B petitioners requesting a change of status on their Form I-129, Petition for a Nonimmigrant Worker.  So, if you have already received an electronic receipt for your H-1B petition, the 15-day clock will not begin until 5/20/2019.

 

Employers who did not file Form I-907, Request for Premium Processing Service, concurrently with an FY 2020 cap-subject H-1B petition requesting a change of status must wait until premium processing begins on May 20 to submit Form I-907.