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USCIS Announces Delays for H-1B Cap Processing & Nonimmigrant Extension/Change of Status Filings

USCIS Announces Delays for H-1B Cap Processing & Nonimmigrant Extension/Change of Status Filings

USCIS announced a series of delays due to the COVID-19 pandemic, including extensions and change of status filings for nonimmigrants and H-1B cap petitions. USCIS offices have been temporarily closed for in-person appointments and much of the workforce is working remotely.

H-1B Cap-Subject Petitions

The H-1B cap filing window opened April 1, 2020 for registrations selected during the March registration period. Previously, USCIS announced that premium processing (guaranteeing a 15 day adjudication window) is suspended until further notice due to the pandemic. Petitioners are now advised that receipt notices will not be generated until at least May 1, 2020, but that intake processing will be done in the order in which the filings arrived at the service centers. Petitions will still be stamped on the date they arrive (if otherwise properly filed) and the receipt date will correspond with the actual arrival date to the service center.

While the receipt date should remain the same, this delay narrows the window for refiling if the case was “improperly filed” due to an error. Increasing the stress on petitioners is the discrepancy between the service centers noted on the registration selection notices, which reflected different service centers than indicated on the USCIS direct filing for I-129 webpage.

The filing windows are not being extended at this time and there is no indication this window will be extended. Petitioners are also asked not to make inquiries on any petitions until receipt notices are received. USCIS stated that:

“Due to delayed data entry and notice generation, there will be a general delay in processing FY 2021 cap-subject petitions. We are mindful of petitions with sensitive expiration and start dates, such as cap-gap petitions, and will strive to process these petitions as efficiently as possible.”

The announcement advised that all cap-subject petitions should be filed at the service center noted on the selection notice, but cases may be transferred between the Vermont, California, Nebraska, and Texas Service Centers to “balance the workload and enhance efficiencies.” All transferred cases will receive a notification in the mail with the new location.

Nonimmigrant Extension/Change of Status Filings

In the announcement warning of delays in processing, the Department of Homeland Security also hinted of more restrictive immigration policies:

“DHS also continues to take action to protect the American people and our communities, and is considering a number of policies and procedures to improve the employment opportunities of U.S. workers during this pandemic.”

The announcement acknowledges the existing options available to nonimmigrant visa holders, but despite the requests by many immigrant workers and supporting organizations, the notice does not provide guaranteed flexibility for those facing hardships due to COVID-19. USCIS shares the following options available:

  • Apply for an Extension. Most nonimmigrants can mitigate the immigration consequences of COVID-19 by timely filing an application for extension of stay (EOS) or change in status (COS). U.S. Citizenship and Immigration Services continues to accept and process applications and petitions, and many of our forms are available for online filing.
  • If You File in a Timely Manner. Nonimmigrants generally do not accrue unlawful presence while the timely-filed, non-frivolous EOS/COS application is pending.  Where applicable, employment authorization with the same employer, subject to the same terms and conditions of the prior approval, is automatically extended for up to 240 days after I-94 expiration when an extension of stay request is filed on time.
  • Flexibility for Late Applications. USCIS reminds petitioners and applicants that it can consider delays caused by the COVID-19 pandemic when deciding whether to excuse delays in filing documents based on extraordinary circumstances.

USCIS also notes that in certain situations, a late filing request for an extension or change of status may still be excused after the authorized period if it was “due to extraordinary circumstances beyond their control, such as those that may be caused by COVID-19.” The notice states that the “length of the delay must be commensurate with the circumstances” and that the individual must submit “credible evidence to support their request” which will be evaluated on a case-by-case basis.

Visa Waiver Program/ESTA Update

Unlike visitor’s visas or other nonimmigrant visas, entrants in the U.S. under the Visa Waiver Program are not eligible for extensions. However, the regulations provide for the concept of “Satisfactory Departure” under certain emergency situations, such as COVID-19. If Satisfactory Departure is approved, the individual must depart the U.S. within the approved period to be regarded as having made a timely departure without overstaying the allowed time. We previously explored options for requesting satisfactory departure for up to 30 days by contacting the Customs and Border Protection (CBP) at the appropriate port of entry.

In USCIS’s announcement on processing delays, the agency also states that for Visa Waiver Program entrants who have already been granted satisfactory departure but they are unable to depart within the 30 day period because of COVID-19 travel issues, USCIS can temporarily provide an additional 30-day period of satisfactory departure. To request satisfactory departure from USCIS, a VWP entrant should call the USCIS Contact Center.

Visit Challa Law Group’s COVID-19 Resource Page for Employers & Foreign Workers to read about other critical immigration updates or email us at info@challalaw.com with any questions.

Final H-1B Rule (Partially) Effective for 2019 Cap

After numerous public comments, USCIS posted the final H-1B registration rule requiring petitioners to register in a new system on behalf of cap-subject aliens. The rule also reverses the order in which H-1B petitions are selected for adjudication, potentially increasing the number of H-1B visa holders with U.S. master’s degrees. While the rule was published on January 31, 2019, the electronic registration requirement has been suspended until the FY 2021 cap season “to complete user testing and ensure the system and process are fully functional.”

Since President Donald Trump signed the “Buy American, Hire American” executive order in 2017, the Department of Homeland Security has made a series of changes to adjudication processes through policy memoranda. The executive order put a special emphasis on the H-1B program and directed the Secretary of Homeland Security to “suggest reforms to ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries.” USCIS Director Cissna stated:

“The registration system, once implemented, will lower overall costs for employers and increase government efficiency. We are also furthering President Trump’s goal of improving our immigration system by making a simple adjustment to the H-1B cap selection process. As a result, U.S. employers seeking to employ foreign workers with a U.S. master’s or higher degree will have a greater chance of selection in the H-1B lottery in years of excess demand for new H-1B visas.”

The new registration system would allow employers to wait until a registrant is selected for the cap before submitting the H-1B petition. Only basic information would be required during the registration process for the employer and beneficiary, including the employer’s name, EIN, address, authorized representative information, basic biographic information about the beneficiary, and notification of the employer’s attorney or accredited representative.

Employers: Preparing for April 1, 2019

Since the registration system will be delayed, the main change to the H-1B filing process for cap season 2019 is the order by which USCIS will select H-1B petitions. The previous process was to select the advanced degree exemption beneficiaries first (assuming the H-1B cap and advanced degree exemption quotas are reached within the first five days of filing). The new rule reverses the selection order, counting all applicants towards the estimated number needed to reach the regular H-1B cap first. After those applicants are selected, then USCIS will select applicants eligible for the master’s degree or higher exemption. USCIS estimates that this change will cause a 16% increase in the number of selected beneficiaries with a master’s degree or higher from a U.S. institution of higher education. Employers hiring individuals with U.S. master’s degrees may have a higher likelihood of getting beneficiaries selected for the cap or advanced degree exemption.

A recent report by the National Foundation for American Policy (a non-partisan group) found that denials and Requests for Evidence (RFEs) increased soon after the “Buy American, Hire American” executive order was signed. From the third to fourth quarter of FY2017, “the proportion of H-1B petitions denied for foreign-born professionals increased by 41%… rising from a denial rate of 15.9% in the 3rd quarter to 22.4% in the 4th quarter.” RFEs also jumped from 63,599 in the first three quarters combined to 63,184 in the fourth quarter, causing the rate of RFEs to completed cases to jump from 23% in the third quarter to 69% in the fourth quarter.

H-1B RFEs are often a mechanism for DHS’s increased scrutiny on wages and certain level one specialty occupations. Employers need to initiate cases early so that these issues can be addressed before the petition is filed. Employers and potential H-1B recipients should already be gathering documentations in preparation for the April 1, 2019 deadline. If you wait until March, it may be too late to obtain the necessary labor condition application and gather all required documents.

Below are some tips to help your H-1B get approved:

  • Consult with an immigration attorney to ensure the position meets H-1B regulations for a specialty occupation.
  • Develop a detailed job description that clearly lists job duties and make sure the position matches the required salary.
  • Explain how the position is specialized and requires a minimum of a bachelor’s degree.
  • H-1B applicants must have all documentation translated into English with a valid translation certificate attached.
  • If the degree is from a foreign institution, plan to have a credentials evaluation completed.
  • Double check the required filing fees and decide whether to utilize premium processing.

Employers also need to ensure strict compliance to the H-1B regulations and file timely amendments or extensions for employees who could shift job duties or be near the end of a project.