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U.S. Citizenship and Immigration Services (USCIS) proposed a rule that would require petitioners seeking to file H-1B petitions subject to the regular cap, including those eligible for the advanced degree exemption, to first electronically register with USCIS during a designated registration period.  The proposed rule would also reverse the order by which USCIS selects H-1B petitions under the H-1B cap and the advanced degree exemption.

We will begin preparing H-1B petitions in January 2019.  Contact our office to file an H-1B petition and with your questions about the H-1B program and the proposed rule.

Background

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A recent Forbes Op-Ed article, International Students Are Founding America’s Great Startups, by Stuart Anderson, highlights the high percentage of U.S. startup companies that have been founded by professionals who first came to the United States as international students.

The study, conducted by the National Foundation for American Policy, a non-partisan public policy research organization of which Anderson is the executive director, finds that almost one quarter (20 out of 91)  of U.S. billion-dollar startups have a founder who first came to the U.S. as an  international student. These startups have a collective value of $9.6 billion and have created an average of more than 1,400 jobs per company.

Anderson argues that programs such as Optional Practical Training (OPT), which allows foreign students to stay in the U.S. after graduation to work for a period of up to 12 months, gives foreign students an opportunity to join the U.S. workforce and find successful U.S. startups. He argues that the Trump Administration’s restrictions on foreign students will make it more difficult for these students to become valuable assets to the U.S. workforce.

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Law360 Reports that the Seaboard Corporation agreed to pay $750,000 to U.S. Immigration and Customs Enforcement  (ICE) and $256,000 to the Oklahoma General’s Office to resolve claims that their Oklahoma based pork production plant hired unauthorized immigrant workers. According to Law360, for the past six years ICE has been investigating allegations that the Seaboard plant employed workers who did not have proper work authorization and had not completed the required employee eligibility forms. ICE also investigated allegations that the plant improperly submitted health care claims from employees on private health insurance to the Oklahoma Medicaid Program. As part of the settlement, Seaboard did not admit any wrongdoing. The settlement was handled out of court.

According to ICE, under federal law, employers are required to verify the identity and employment eligibility of all individuals they hire, and to document that information using the Employment Eligibility Verification Form I-9. A notice of inspection alerts business owners that ICE is going to audit their hiring records to determine whether or not they are in compliance with the law. Employers are required to produce their company’s I-9s within three business days, after which ICE will conduct an inspection for compliance. If I-9 inspections reveal that business are knowingly violating the law, civil fines and possible criminal prosecution follow.

Since January 2018 ICE served more 5,200 I-9 audit notices to businesses across the U.S. In 2017, ICE conducted 1,360 I-9 audits and in the same year businesses were ordered to pay $97.6 million in judicial forfeiture, fines and restitution and $7.8 million in civil fines.

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The visa bulletin is out at this link: December 2018

For the Date for Filing, employment-based categories are as follows: EB-1 is at June 1, 2018 for all countries except China and India (October 1, 2017); EB-2 is current for all countries except  China (September 8, 2015) and India (May 22, 2009); EB-3 is current for all countries except China (December 1, 2015), India (January 1, 2010) and the Philippines (August 1, 2017);  EB-3 other workers is current for all countries except China (June  1, 2008), India (January 1, 2010) and the Philippines (August 1, 2017); EB-4 and religious worker visas are current for all countries except El Salvador, Guatemala, and Honduras (May 1, 2016); and EB-5 non-regional centers and regional centers are current for all countries except China (October 1, 2014).  Family based petitions are backlogged, with the most recent date at December 1, 2017 for F2A (spouses and children under 21 of lawful permanent residents) and the longest queue for Philippines F4 (brothers and sisters of U.S. Citizens) at April 22, 1997.

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The American Immigration Council (AIC), a nonprofit immigration advocacy group, notes that other countries stand ready to embrace highly skilled foreign workers’ contributions, if the U.S. increases obstacles which prevent highly skilled workers from applying for and receiving U.S. work authorization.  While the current U.S. administration plans a major overhaul of the H-1B process, which will decrease the number of highly skilled foreign workers admitted to the U.S., other countries such as Canada are embracing highly skilled foreign workers.  The Canadian Government’s “Global Skills Strategy” program has promised a two week turn around on work permits for skilled foreign workers.

Talent is highly mobile and immigration contributes to “talent clusters.”  According to Harvard Business School professor William Kerr, the author of The Gift of Global Talent, talent clusters are areas where talented individuals tend to congregate, and these clusters form innovative places such as the Silicon Valley.

As the author indicates, immigrants contribute to the growth of these clusters.  For example, immigrants are responsible for one-quarter of all U.S. patents filed, and more than half of all U.S. workers with doctorates in science and engineering fields are immigrants.  As the U.S. restricts immigration, highly skilled foreign workers will likely find more welcoming talent clusters in other countries.

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U.S. Citizenship and Immigration Services (USCIS) issued an updated policy memo with guidance to adjudicators 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.

The updated policy was effective September 11, 2018, and applies to most applications, petitions, and requests received after the effective date.  Petitions and applications not subject to the policy are those received on or before September 11, 2018; and Deferred Action for Childhood Arrivals (DACA), asylum, and refugee cases.

The previous policy instructed USCIS adjudicators to issue statutory denials without an RFE or a NOID only if there was no legal basis for the benefit requested or the benefit requested was nonexistent.  The policy also stated that adjudicators should issue an RFE unless there was “no possibility” that the deficiency could be cured by submission of additional evidence.  This provided filers the opportunity to submit additional requested evidence to prove eligibility and achieve case approval.  In addition, adjudicators were instructed to issue NOIDS which provide filers the opportunity to rebut evidence of ineligibility or derogatory information that has been discovered by USCIS and may affect eligibility.

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The visa bulletin is out at this link: Visa Bulletin for November 2018

For the Application Final Action Dates, employment-based categories are as follows: EB-1 is at April 1, 2017 for all countries except India and China (June 1, 2016); EB-2 is current for all countries except India (March 26, 2009) and China (May 15, 2015); EB-3 is current for all countries except India (January 1, 2009), China (June 1, 2015), and the Philippines (June 8, 2017); EB-3 other workers is current for all countries except India (January 1, 2009), China (May 1, 2007), and the Philippines (June 8, 2017); EB-4 and religious worker visas are current for all countries except El Salvador, Guatemala, and Honduras (February 15, 2016) and Mexico (November 22, 2016); EB-5 non-regional centers and regional centers are current for all countries except China (August 15, 2014) and Vietnam (February 1, 2016).  Family based petitions are backlogged, with the most recent date at September 15, 2016 for F2A (spouses and children under 21 of lawful permanent residents), and the longest queue for F4 Philippines (brothers and sisters of U.S. Citizens) is June 15, 1995.

For the Date for Filing, employment-based categories are as follows: EB-1 is at June 1, 2018 for all countries except India and China (October 1, 2017); EB-2 is current for all countries except India (May 22, 2009) and China (June 15, 2015); EB-3 is current for all countries except India (October 1, 2009), China (August 8, 2015), and the Philippines (July 1, 2017); EB-3 other workers is current for all countries except India (October 1, 2009), China (June 1, 2008), and the Philippines (July 1, 2017); EB-4 and religious worker visas are current for all countries except El Salvador, Guatemala, and Honduras (May 1, 2016); and EB-5 non-regional centers and regional centers are current for all countries except China (October 1, 2014).  Family based petitions are backlogged, with the most recent date at December 1, 2017 for F2A (spouses and children under 21 of lawful permanent residents) and the longest queue for Philippines F4 (brothers and sisters of U.S. Citizens) at April 8, 1996.

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Information on the 2020 Diversity Immigrant Visa Program (DV-2020), including instructions on submitting an electronic entry, answers to frequently asked questions (FAQs), and a list of countries/areas by region whose natives are eligible for DV-2020 is now available.  Entries must be submitted electronically between Wednesday, October 3, 2018, and November 6, 2018.

The congressionally mandated Diversity Immigrant Visa Program (DV Program) makes up to 50,000 immigrant visas available annually.  Diversity Immigrant Visas are drawn from random selection among all entries to individuals who meet strict eligibility requirements, and who are from countries with low rates of immigration to the United States.

Successful Diversity Immigrant Visa entrants must have at least a high school education or its equivalent, or two years of work experience within the past five years in an occupation requiring at least two years of training or experience.

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On September 21, 2018, the Department of Homeland Security proposed new regulations related to public charge grounds of inadmissibility. The proposed regulations expand U.S. Citizenship and Immigration Services (USCIS) grounds to deny permanent resident applications based upon a green card applicant’s use of public benefit programs such as food assistance and section 8 housing vouchers.  The regulations will also apply to individuals seeking nonimmigrant visas and change of status applicants.

Background on Public Charge:

When reviewing Permanent Residence applications, USCIS determines whether applicants are likely to become a public charge or primarily dependent on the government for subsistence. Applicants found likely to become a public charge may be denied lawful permanent resident status.

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Work Authorization Extension Only Valid Through September 30, 2018

F-1 students who have an H-1B petition that remains pending on October 1, 2018, risk accruing unlawful presence if they continue to work on or after October 1 (unless otherwise authorized to continue employment), as their “cap-gap” work authorization is only valid through September 30.

“Cap gap” regulations allow an F-1 student who is the beneficiary of a timely filed H-1B cap-subject petition requesting a change of status to H-1B on October 1, to have his or her F-1 status and any current employment authorization extended through September 30.