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.
USCIS announced for March 2018, individuals seeking adjustment of status for family-sponsored filings must use the Dates for Filing Chart and those seeking adjustment of status for employment-based preference filings must use the Final Action Dates Chart in DOS’s Visa Bulletin for March 2018
USCIS does not anticipate that premium processing will be suspended for non-cap H-1B petitions; however, there may be a brief suspension of premium processing for H-1B cap-subject petitions.
EB-1 India and EB-1 China.
Charlie expects these categories to remain current for the coming months, but the imposition of a final action date in the summer remains likely if the current rate of demand continues.
This category should remain current for the foreseeable future.
EB-2 and EB-3 China.
The February Visa Bulletin predicts that EB-2 China will continue to advance at a rate of “(s)everal months.” Charlie clarified that this means advancement at a rate of two to three months, noting that EB-2 China may move at a faster pace to generate demand. EB-3 China is predicted to advance at a pace of “(u)p to five months.” Charlie advised that EB-3 China will likely continue to advance at a faster pace than EB-2 China.
EB-2 India. Given heavy demand, the February Visa Bulletin predicts modest forward movement for EB-2 India at a rate of “(u)p to two weeks.”
EB-3 India. The February Visa Bulletin predicts forward movement in this category at a pace of one to three months.
EB-3 Philippines. Demand in this category is comfortable, but not extremely high, which means there is less room to advance this date significantly.
The February Visa Bulletin includes predictions for Worldwide family-based cases, with FB-1 Worldwide advancing at a pace of up to one month, FB-2A Worldwide advancing three to five weeks, FB-3 Worldwide advancing up to five weeks, and FB-4 worldwide advancing up to three weeks.
USCIS: USCIS is a fee-funded agency with the exception of E-Verify, so if the government shuts down, only E-Verify shuts down. Otherwise, it’s business as usual.
DOS: Visa and passport operations are fee-funded and should not be impacted by a lapse in appropriations, but operating status and funding will need to be monitored closely. If visa operations are affected, consular posts will generally only handle diplomatic visas and “life or death” emergencies.
CBP: Inspection and law enforcement personnel are considered “essential.” Ports of entry will be open; however, processing of applications filed at the border may be impacted.
ICE: ICE enforcement and removal operations will continue, and ICE attorneys will typically focus on the detained docket during a shutdown. The ICE Student and Exchange Visitor Program (SEVP) offices are unaffected since SEVP is funded by fees.
EOIR: EOIR’s detained docket is typically considered an essential function and would therefore continue to operate. During the 2013 shutdown, EOIR continued to accept court filings, even in non-detained cases.
DOL: The OFLC would cease processing all applications in the event of a government shutdown, and personnel would not be available to respond to e-mail or other inquiries. OFLC’s web-based systems, iCERT and PERM, would be inaccessible, and BALCA dockets will be placed on hold.
U.S. Citizenship and Immigration Services (USCIS) announced yesterday that current beneficiaries of Temporary Protected Status (TPS) under El Salvador’s designation who want to maintain their status through the effective termination date of Sept. 9, 2019, must re-register between Jan. 18, 2018, and March 19, 2018.
It is time to start working on H-1B CAP cases. The filing period is the first 5 business days of April. Please contact my office as soon as possible so that we can initiate H-1B case preparation and have the case(s) ready to go the first of April.
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.”
The U.S. Department of Homeland Security announced today it will terminate a temporary protected status program for nearly 200,000 Salvadorans in September 2019.
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.