President Trump issued a proclamation today continuing his earlier proclamation issued on April 22, 2020. This new proclamation goes into effect at 12.01 AM on June 24th and suspends and limits the entry of any individual seeking entry pursuant to any of the following nonimmigrant visas:
(a) an H-1B or H-2B visa, and any individual accompanying or following to join such individual;
(b) a J visa, to the extent the individual is participating in an intern, trainee, teacher, camp counselor, au pair, or summer work travel program, and any individual accompanying or following to join such individual; and
(c) an L visa, and any individual accompanying or following to join such individual.
The proclamation shall apply only to an individual who:
(i) is outside the United States on the effective date of this proclamation;
(ii) does not have a nonimmigrant visa that is valid on the effective date of this proclamation; and
(iii) does not have an official travel document other than a visa (such as a transportation letter, an appropriate boarding foil, or an advance parole document) that is valid on the effective date of this proclamation or issued on any date thereafter that permits him or her to travel to the United States and seek entry or admission.
As before, the suspension and limitation on entry shall not apply to:
(i) any lawful permanent resident of the United States;
(ii) any individual who is the spouse or child of a United States citizen;
(iii) any individual seeking to enter the United States to provide temporary labor or services essential to the United States food supply chain; and
(iv) any individual whose entry would be in the national interest as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees.
This Proclamation does NOT affect those individuals who are already in the US on H1B, L1 or J1 status. Those individuals whose entry was already suspended under the previous proclamation will continue to be suspended until December 31, 2020.
USCIS has announced that it will resume Premium Processing service in phases, as follows -
1. June 1, 2020 - PP resumes for all eligible I140 cases.
2. June 8, 2020 - PP request can be made for all cap-exempt H-1B petitions (either because employer is cap-exempt or because beneficiary has previously been counted against the cap) and I-129 petitions for other visa categories that were filed before June 8, 2020 and are pending.
3. June 15, 2020 - PP request can be filed concurrently with H1B petitions which are cap-exempt due to the employer being a non-profit or other cap-exempt organization or due to the employee having a Conrad waiver.
4. June 22, 2020 - PP request can be made for all other I129 petitions, including H1B- cap subject petitions for FY 2021.
President Trump signed a Proclamation on April 22, 2020 suspending the entry of certain immigrants into the United States for 60 days. Here's what you need to know about this Order -
The proclamation becomes effective on Thursday, April 23, 2020 at 11:59 PM (ET), and suspends the entry of any individual seeking to enter the U.S. as an immigrant who:
● Is outside the U.S. on the effective date of the proclamation; and
● Does not have a valid immigrant visa or travel date issued before the effective date.
Anyone who is already in the U.S. and has filed for adjustment of status to permanent resident will not be affected by this proclamation.
The following categories are exempted from the proclamation:
1. Lawful permanent residents (LPR).
2. Individuals, and their spouses or children, seeking to enter the U.S. on an immigrant visa as a physician, nurse, or other healthcare professional to work on or perform research on Covid-19.
3. Individuals applying for a visa to enter the U.S. pursuant to the EB-5 immigrant investor visa program;
4. Spouses of U.S. citizens and children of US citizens under age 21;
5. Members of the U.S. Armed Forces and their spouses and children;
6. Individuals and their spouses or children eligible for SI or SQ classification;
7. Individuals whose entry would be in the national interest
Please NOTE: Nonimmigrant visa holders are not included in the current proclamation. However, the proclamation requires the Secretaries of Labor and DHS, to review nonimmigrant programs within 30 days and recommend to the President other appropriate measures to stimulate the U.S. economy and ensure “the prioritization, hiring and employment” of U.S. workers. Therefore, if you are eligible to file extensions of your current non-immigrant visa statuses or are waiting to file any other non-immigrant visa related petition, we would recommend that you talk to your employer/attorney today to file those petitions at the earliest. You can contact our office if you need help with any of these filings.
- On January 31, 2019, USCIS will publish the final rule regarding electronic pre-registration for employers who wish to file H1B cap-subject petitions.
- This rule will be suspended for the upcoming FY 2020 year cap-subject cases.
- However, USCIS will implement a change in order of selecting the cases this upcoming year.
Today U.S. Citizenship and Immigration Services (USCIS) announced that they will publish the final rule on the H-1B visa lottery on January 31, 2019. This rule switches the order in which the lottery is run and will require employers to pre-register H1B cap-subject cases electronically. However, they will delay the electronic pre-registration requirement until next year.
Previously, USCIS used to run the advanced degree exemption cap lottery first and then add those who were not selected to the general cap lottery. This rule will reverse the order. Effective April 1, USCIS will first select H-1B petitions (or registrations, once the registration requirement is implemented) submitted on behalf of all beneficiaries, including those that may be eligible for the advanced degree exemption, towards the general cap. Any remaining advanced degree exemption petitions will then be selected towards the advanced degree cap exemption until that cap is reached.
We will keep you updated on the pre-registration requirements but that will not be used this year.
As always, please don't hesitate to contact our office with any questions you may have with respect to these changes.
As of today, USCIS has resumed Premium Processing for FY 2019 H1B cap cases. This covers only the cases which were accepted in the lottery in April 2018 for FY 2019 H1B cap cases and are already pending with USCIS. The previously announced temporary suspension of premium processing remains in effect for all other categories of H-1B petitions to which it applied.
USCIS announced today that it will extend the suspension of Premium Processing to cap-subject H1B petitions beyond September 1, 2018. It is now expanding this suspension from September 11, 2018 for all H1B petitions that are filed at Vermont Service Center or California Service Center. It expects to resume Premium Processing for all H1B petitions by February 19, 2019. This suspension will not affect the following H1B petitions -
- Cap-exempt petitions that are filed exclusively at the California Service Center because the employer is cap-exempt or because the beneficiary will be employed at a qualifying cap exempt institution, entity, or organization; or
- H1B petitions filed with the Nebraska Service Center by an employer requesting a “Continuation of previously approved employment without change with the same employer”.
This temporary suspension of premium processing will not apply to any other nonimmigrant classifications filed on Form I-129.
USCIS today issued notification that it will delay implementation of the NTA Policy memo of June 28, 2018 (which I discussed in my previous post) until they get more operational guidance. This is good news and hopefully, they will consider the full ramifications of such a policy before going forward.
July 13, 2018 Memo titled "Issuance of Certain RFEs and NOIDs; Revisions to Adjudicator’s Field Manual (AFM) Chapter 10.5(a), Chapter 10.5(b)”
Date effective - September 11, 2018
This policy memo was issued to provide guidance to USCIS officers regarding the discretion to deny an application, petition, or request without first issuing a Request for Evidence (RFE) or Notice of Intent to Deny (NOID) if initial evidence is not submitted or if the evidence in the record does not establish eligibility. It rescinds the June 3, 2013 PM titled “Requests for Evidence and Notices of Intent to Deny” (2013 PM) which provided that an officer should issue an RFE in most circumstances unless it was clear that no document could be provided that would cure the deficiency in the filing.
Under the new policy, the officer is no longer required to issue an RFE or NOID first. They can deny cases directly “for failure to establish eligibility based on lack of required initial evidence.” This could affect all types of employment-based and family-based cases which are missing forms or other required documentation. USCIS has said that this change is being made mainly to deter people from filing frivolous or "place-holder" petitions but it remains to be seen as to how they will implement this policy. It is imperative that all petitions should be filed with all the required documents as there may not be a chance to correct them or provide additional documents, under this memo.
Please contact our office to schedule a consultation if you would like more information on the above policy memorandums and to discuss how it might affect you.
June 28 Memo titled “Updated Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Deportable Aliens” (“NTA Policy Memo”)
Date effective - Immediate (the agencies have 30 days to resolve how they will implement it).
On June 28, 2018, USCIS issued the NTA Policy memo. This memo supersedes a 2011 policy memorandum and expands the circumstances under which USCIS officers could issue an NTA. The NTA Policy memo is a result of the implementation memorandum issued by DHS Secretary John Kelly related to the President’s enforcement priorities in his President’s Executive Order 13678, Enhancing Public Safety in the Interior of the United States.
The NTA Policy memo states that USCIS will issue NTAs in the following cases -
A Notice to Appear is a charging document issued by the Department of Homeland Security to place foreign nationals in removal proceedings. Of particular interest is the 5th prong of the memo which is explained in the memo thus, “USCIS will issue an NTA where, upon issuance of an unfavorable decision on a application or petition, or benefit request, the alien is not lawfully present in the United States.” This is alarming because it now means that if any application, petition, or benefit request is denied by the USCIS and the foreign national is not lawfully present, USCIS will issue an NTA. Also, if a lawfully present individual’s application or petition is denied and he or she is removable, USCIS will issue an NTA if he or she falls into one of the other specific enforcement categories listed above.
If any of your employees is issued an NTA after the denial of a petition, please notify our office immediately as time is of the essence and it will be important to formulate a strategy to help the beneficiary. Please note that USCIS is only required to mail the NTA to the last-known address of the beneficiary. Therefore, it is also important for the beneficiary to update their address with USCIS in a timely manner, if they move. Once an NTA is issued, the foreign national must appear before an Immigration Judge to determine if the foreign national must be removed from the country or if he/she is entitled to any other form of relief. Failure to apply at a court proceeding under the NTA could result in the issuance of an in-absentia order of removal which bars re-entry into the US for 5 years.
In light of the above memo, it is very important to discuss all possibilities before filing extensions/change of status petitions and to try and file them in a timely manner. Most extension petitions can be filed 180 days before the expiry of the current petition. There are many options that can be considered, including filing under Premium processing (so the decision is obtained before the expiry of the current I-94) or requesting Consular processing of the extension or change of status petition (to allow the alien beneficiary leave the country when their I-94 expires). These policies will affect immigrant visa petitions like I-140 and I-485 petitions also and it is important that the beneficiary should continue to maintain their underlying non-immigrant visa status while their Adjustment of status petition is still pending.
U.S. Citizenship and Immigration Services (USCIS) has resumed premium processing today for all H-1B visa petitions subject to the FY2018 cap. This includes those petitions which are under the Master's cap also. In addition to this, USCIS previously resumed premium processing H-1B petitions filed on behalf of physicians under the Conrad 30 waiver program, as well as interested government agency waivers and for certain H-1B petitions that are not subject to the cap. Premium processing remains temporarily suspended for all other H-1B petitions, such as extensions of stay, change of employer or H1B amendment petitions.