Visa Lawyer Blog

Articles Posted in Employment Based Petitions

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It is an exciting and busy time at the Sapochnick Law Firm! Our Firm is gearing up for the long awaited H-1B season to kick off on Monday, April 1, 2019.

To help you put your best foot forward, we are sharing the ultimate running checklist for H-1B- cap-subject petitions. Please remember that employers cannot file an H-1B petition for an employee more than 6 months before the employee’s intended start date of employment. If selected in the lottery, H-1B visa workers can begin employment on October 1st.

How long is the H-1B visa good for?

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As a reminder, we would like to inform our readers that USCIS has published a revised Form I-539 Application to Extend/Change Nonimmigrant Status. Beginning March 21, 2019, after close of business, USCIS will no longer accept Form I-539 with an edition date of 12/23/16 or earlier.

Applicants must send revised Form I-539 with edition date of 02/04/19. USCIS has also published a new I-539A Supplemental Information for Application to Extend/Change Nonimmigrant status, which replaces Supplement A of Form I-539.

Per the USCIS website:

We have revised Form I-539, Application to Extend/Change Nonimmigrant Status and will publish the revised form on our website on March 8, 2019. We will be removing the 12/23/16 version of Form I-539 from uscis.gov on March 8 but will be allowing for a two-week grace period, until close of business on March 21, for that version to be received by USCIS. Starting on March 22, we will only accept the revised Form I-539 with an edition date of 02/04/19. We will reject any Form I-539 with an edition date of 12/23/16, or earlier, that is received by USCIS after March 21.

We will also be publishing a new Form I-539A, Supplemental Information for Application to Extend/Change Nonimmigrant Status, on the Form I-539 webpage on March 8. Form I-539A replaces the Supplement A provided in previous versions of Form I-539. Form I-539A can only be submitted with Form I-539; it cannot be filed as a standalone form.

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The start of the FY 2020 H-1B cap season begins on April 1, 2019. This year, USCIS will offer premium processing services in a two-phased approach to avoid temporary suspension of the service.

Change of Status H-1B Cap Petitions

Starting April 1, FY 2020 cap-subject H-1B petitioners requesting a change of status on their Form I-129, Petition for a Nonimmigrant Worker, may request premium processing by concurrently filing Form I-907, Request for Premium Processing Service.

However, to prioritize data entry for cap-subject H-1B petitions, USCIS will not begin premium processing for these petitions immediately.

USCIS will begin premium processing for these petitions no later than May 20, 2019 and will notify the public before premium processing begins for these petitions.

If a petitioner does not file Form I-907 concurrently with an FY 2020 H-1B cap-subject petition requesting a change of status, the petitioner must wait until premium processing begins to submit Form I-907.

All Other FY 2020 Cap-Subject Petitions

Premium processing services for all other FY 2020 cap-subject H-1B petitions will not begin until at least June 19, 2019. Cap-subject petitioners who are not requesting a change of status may not submit their premium processing request concurrently with their H-1B petition. These petitioners will be eligible to upgrade to premium processing once premium processing begins for this group. USCIS will notify the public with a confirmed date for premium processing for cap-subject petitioners not requesting a change of status. Continue reading

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Good news for H-1B FY 2020 applicants requesting a change of status. Premium processing services will be offered for applicants filing an H-1B petition in the April 2019 lottery who are requesting a change of status.

Premium processing will be offered in a two-phased approach during the FY 2020 cap season, so that USCIS does not end up having to suspend the use of this service as it has in previous years.

The first phase will include FY 2020 cap-subject H-1B petitions requesting a change of status, and the second phase will include all other FY 2020 cap-subject petitions.

What should you know?

Starting April 1, H-1B FY 2020 cap-subject petitioners requesting a change of status on their Form I-129, Petition for a Nonimmigrant Worker, may request premium processing by concurrently filing Form I-907, Request for Premium Processing Service.

However, to prioritize data entry for cap-subject H-1B petitions, USCIS will not begin premium processing for these petitions immediately.

USCIS will begin premium processing for these petitions no later than May 20, 2019, and will notify the public before premium processing begins for these petitions.

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On February 22, 2019, USCIS announced it has received enough petitions to meet the congressionally mandated H-2B cap for temporary nonagricultural workers, for the second half of FY2019. February 19, 2019 was the final receipt date for new cap-subject H-2B worker petitions requesting an employment start date before October 1, 2019.

On Feb. 21, USCIS conducted a lottery to randomly select from H-2B petitions received on Feb. 19. As a result, USCIS assigned all petitions selected in the lottery the receipt date of Feb. 22. Premium processing service for petitions selected in the lottery began on Feb.22.

USCIS will continue to accept H-2B petitions that are exempt from the congressionally mandated cap. This includes petitions for:

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The Trump administration is making another bold move, this time the target is H-4 dependent spouses of H-1B nonimmigrant workers seeking permanent residence.

The Department of Homeland Security has published a notice of proposing rule-making (NRPM) to rescind an Obama era rule extending eligibility for employment authorization to certain H-4 dependent spouses of H-1B workers seeking permanent residence.

We are awaiting publication of the proposed rule in the federal register. At this time, the regulation has preliminarily appeared on the government website reginfo.gov.

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Today February 15, 2019, USCIS announced that the agency will resume premium processing services on Tuesday February 19, 2019, for all H-1B petitions filed on or before December 21, 2018.

Premium processing service remains suspended for H-1B petitions filed on or after December 22, 2018. USCIS will make an announcement at a later date when USCIS plans to resume premium processing for the remaining categories of H-1B petitions as agency workloads permit the agency to resume these services.

USCIS has provided the following guidance for petitioners who received a transfer notice for a pending H-1B petition, who are interested in upgrading their petition to premium processing:

If you received a transfer notice for a pending H-1B petition, and you are requesting premium processing service, you must submit the premium processing request to the service center now handling the petition.

You should also include a copy of the transfer notice with your premium processing request to avoid possible delays associated with the receipt of your premium processing request.

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A new policy brief published by the American Immigration Lawyers Association (AILA) analyzing USCIS processing times reveals that the agency has reached “crisis” level delays in processing immigrant and non-immigrant petitions. These delays have worsened during the Trump administration.

According to the report the most vulnerable populations include immigrant families, domestic abuse survivors and their children, traumatized and threatened persons seeking humanitarian aid, and U.S. businesses.

Specifically, the report finds that USCIS data released for fiscal years 2014 through 2018 reveals that USCIS is failing to adjudicate cases in a reasonable and timely manner:

  • The overall average case processing time surged by 46 percent over the past two fiscal years and 91 percent since FY 2014.
  • USCIS processed 94 percent of its form types—from green cards for family members to visas for human trafficking victims to petitions for immigrant workers—more slowly in FY 2018 than in FY 2014.
  • Case processing times increased substantially in FY 2018 even as case receipt volume appeared to markedly decrease
  • Data revealed a “net backlog” exceeding 2.3 million delayed cases at the end of FY 2017
  • DHS identified a net backlog of 2,330,143 USCIS cases as of the end of FY 2017.7
  • DHS observed that USCIS’s “net backlog has been as high as 1.7 million in FY 2004 and 1.5 million in FY 2008”—suggesting that USCIS’s net backlog at the conclusion of FY 2017 was its highest on record
  • the FY 2017 net backlog more than doubled from 1,047,751 cases at the conclusion of FY 2016—despite only a four percent increase in case receipts during that one-year period

What is to blame?

According to the report the following decisions made under the Trump administration have exacerbated delays and slowed the level of immigration to the United States:

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The Department of Homeland Security has published an advanced copy of the final rule that will amend the way the H-1B visa program will be run in the future. The official version of the final rule is set to be published in the Federal Register tomorrow January 31, 2019, and become effective April 1, 2019, the beginning of the H-1B cap visa season for fiscal year 2020.

Beginning with the upcoming FY 2020 H-1B cap season, which kicks off on April 1, 2019, USCIS will reverse the order by which it selects H-1B petitions under the H-1B regular cap and the advanced degree exemption.

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. USCIS will then select from the remaining eligible petitions, a number projected to reach the advanced degree exemption.

According to USCIS, “Changing the order in which USCIS counts these allocations will likely increase the number of petitions for beneficiaries with a master’s or higher degree from a U.S. institution of higher education to be selected under the H-1B numerical allocations.”

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USCIS recently announced that beginning January 28th premium processing services for all fiscal year 2019 H-1B cap petitions will resume, including petitions filed under the advanced degree exemption (also known as the “master’s cap”).

This means that any petitioner with a pending FY 2019 cap-subject petition may now upgrade the H-1B petition to premium processing service.

Petitioners who have received a request for evidence for a pending FY 2019 cap-subject petition may also upgrade the petition to premium processing service by including a Form I-907 with the response to the request for evidence.

What is premium processing service?

Premium processing is a service provided by USCIS for certain employment-based immigration benefit requests. The service gives petitioners the benefit of receiving 15-day processing of their petition.  Premium processing is typically used in connection with Form I-129 Petitions for Nonimmigrant workers and I-130 Immigrant Petitions for Alien Workers.

At the moment, premium processing service has only resumed for pending petitions subject to the FY 2019 cap.

Premium processing services remain temporarily suspended for all other categories of H-1B petitions (except those outlined below).

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