Premium Processing Now Available for Certain H-1B Cap-Exempt Petitions

U.S. Citizenship and Immigration Services (USCIS) will resume premium processing for certain cap-exempt H-1B petitions effective immediately. The H-1B visa has an annual cap of 65,000 visas each fiscal year. Additionally, there is an annual “master’s cap” of 20,000 petitions filed for beneficiaries with a U.S. master’s degree or higher.

Premium processing will resume for petitions that may be exempt from the cap if the H-1B petitioner is:

* An institution of higher education;

* A nonprofit related to or affiliated with an institution of higher education; or

* A nonprofit research or governmental research organization.

Premium processing will also resume for petitions that may also be exempt if the beneficiary will be employed at a qualifying cap-exempt institution, organization or entity.

Starting today, those cap-exempt petitioners who are eligible for premium processing can file Form I-907, Request for Premium Processing Service for Form I-129, Petition for a Nonimmigrant Worker. Form I-907 can be filed together with an H-1B petition or separately for a pending H-1B petition.

USCIS previously announced that premium processing resumed on June 26 for H-1B petitions filed on behalf of physicians under the Conrad 30 waiver program as well as interested government agency waivers.

USCIS plans to resume premium processing of other H-1B petitions as workloads permit. USCIS will make additional announcements with specific details related to when we will begin accepting premium processing for those petitions. Until then, premium processing remains temporarily suspended for all other H-1B petitions. USCIS will reject any Form I-907 filed for those petitions, and if the petitioner submitted one check combining the Form I-907 and Form I-129 fees, USCIS will have to reject both forms.

From the USCIS Press Release

USCIS Moves Cases Between Offices to Balance Workload

A recent email from USCIS:

From January 5 through March 28, USCIS began sending some cases between service centers in order to balance workloads. We have updated our Workload Transfer Updates page with this information:

  • Some Forms I-765, Application for Employment Authorization, for F, M, and J nonimmigrants went from the California Service Center (CSC), the Nebraska Service Center (NSC) and the Texas Service Center (TSC) to the Potomac Service Center (PSC).
  • Some Forms I-539, Application to Extend/Change Nonimmigrant Status, for F, M, J, or B nonimmigrants went from the VSC to the CSC
  • Some Forms I-129, Petition for a Nonimmigrant Worker, for petitioners requesting H-1B nonimmigrant classification went from the VSC to the CSC
  • Some Forms I-130, Petition for Alien Relative, for immediate relatives went from the NSC to the PSC and the TSC
  • Some Forms I-129, Petition for a Nonimmigrant Worker, for petitioners seeking L, O, and P nonimmigrant classification went from the VSC to the CSC (except for major league sports-related P petitions which will remain with the VSC)
  • Some Forms I-129S, Nonimmigrant Petition Based on Blanket L Petition, for L nonimmigrant classification when from the VSC to the CSC
  • Some Forms I-539, Application to Extend/Change Nonimmigrant Status, for applicants seeking the L-2, O-3, and P-4 nonimmigrant classifications that are filed together with Form I-129 went from the VSC to the CSC (except for major league sports-related P petitions which will remain with the VSC)
  • Some Forms I-765, Application for Employment Authorization, for applicants seeking L-2 status went from the VSC to the CSC

Employers Should Review Form I-9 for Social Security Number Glitch

We received the following email from the USCIS about a form I-9 glitch:

If you used Form I-9, Employment Eligibility Verification, that you downloaded between Nov. 14 and Nov. 17, 2016, review them to ensure your employees’ Social Security numbers appear correctly in Section 1. There was a glitch when the revised Form I-9 was first published on Nov. 14, 2016. Numbers entered in the Social Security number field were transposed when employees completed and printed Section 1 using a computer. For example, the number 123-45-6789 entered in the Social Security number field would appear as 123-34-6789 once the form printed. Employers using a Form I-9 that contains this glitch should download and save a new Form I-9 at uscis.gov/i-9.

Employers who notice their employees’ Social Security numbers are not written correctly should have their employees draw a line through the transposed Social Security number in Section 1, enter the correct Social Security number, and then initial and date the change. Employers should include a written explanation with Form I-9 about why the correction was made in the event of an audit.

USCIS immediately repaired and reposted the form on Nov. 17, 2016.

Badmus commentary:  Employers should be aware, however, the social security number on the I-9 form is optional. In other words, employees are not required to provide their social security number on the form unless the employer participates in the E-Verify program.  Also, if the employee does not yet have a social security number but are work eligible, he or she can work while waiting for the number.  The USCIS specifically advises: “You may not ask employees to provide you a specific document with their Social Security number on it. To do so may constitute unlawful discrimination.”  USCIS Handbook for Employers

USCIS Reminds Beneficiaries of Temporary Protected Status for Guinea, Liberia, and Sierra Leone of May 21 Termination

USCIS is reminding the public that the designations of Temporary Protected Status (TPS) for Guinea, Liberia, and Sierra Leone terminate effective May 21, 2017.

To provide sufficient time for an orderly transition, the Department of Homeland Security gave beneficiaries under these three designations 8 months advance notice of the expiration by publishing 3 notices in the Federal Register on Sept. 22, 2016 (one for each country). These notices urged individuals who did not have another immigration status to use the time before the terminations became effective in May to prepare for and arrange their departure from the United States or to apply for other immigration benefits for which they may be eligible.

Although TPS benefits will no longer be in effect starting May 21, 2017, TPS beneficiaries will continue to hold any other immigration status that they have maintained or acquired while registered for TPS. Individuals with no other lawful immigration status on May 21, 2017, will no longer be protected from removal or eligible for employment authorization based on TPS.

TPS-related Employment Authorization Documents issued under the Guinea, Liberia, and Sierra Leone designations are only valid through May 20, 2017, and will not be renewed or extended.

After reviewing country conditions and consulting with the appropriate U.S. government agencies, former Secretary of Homeland Security Jeh Johnson determined that conditions in Guinea, Liberia, and Sierra Leone no longer support their designations for TPS. The widespread transmission of Ebola virus in the three countries that led to the designations has ended.

Additional information about TPS is available at uscis.gov/tps.

(From the USCIS press release)

New Redesigned Green Cards and Employment Authorization Documents Starting May 1, 2017

U.S. Citizenship and Immigration Services today announced a redesign to the Permanent Resident Card (also known as a Green Card) and the Employment Authorization Document (EAD) as part of the Next Generation Secure Identification Document Project. USCIS will begin issuing the new cards on May 1, 2017.

These redesigns use enhanced graphics and fraud-resistant security features to create cards that are highly secure and more tamper-resistant than the ones currently in use.

The new card designs demonstrate USCIS’ commitment to continue taking a proactive approach against the threat of document tampering and fraud. They are also part of an ongoing effort between USCIS, U.S. Customs and Border Protection, and U.S. Immigration and Customs Enforcement to enhance document security and deter counterfeiting and fraud.

The Redesigned Cards

The new Green Cards and EADs will:

  • Display the individual’s photos on both sides;
  • Show a unique graphic image and color palette:
    • Green Cards will have an image of the Statue of Liberty and a predominately green palette;
    • EAD cards will have an image of a bald eagle and a predominately red palette;
  • Have embedded holographic images; and
  • No longer display the individual’s signature.

Also, Green Cards will no longer have an optical stripe on the back.

How To Tell If Your Card Is Valid

Some Green Cards and EADs issued after May 1, 2017, may still display the existing design format as USCIS will continue using existing card stock until current supplies are depleted. Both the existing and the new Green Cards and EADs will remain valid until the expiration date shown on the card.

Certain EADs held by individuals with Temporary Protected Status (TPS) and other designated categories have been automatically extended beyond the validity date on the card. For additional information on which EADs are covered, please visit the Temporary Protected Status and American Competitiveness in the 21st Century Act web pages on uscis.gov.

Both versions are acceptable for Form I-9, Employment Eligibility Verification, E-Verify, and Systematic Alien Verification for Entitlements (SAVE). Some older Green Cards do not have an expiration date.  These older Green Cards without an expiration date remain valid. Individuals who have Green Cards without an expiration date may want to consider applying for a replacement card bearing an expiration date. Obtaining the replacement card will reduce the likelihood of fraud or tampering if the card is ever lost or stolen.

—from the USCIS press release

2017- 2018 H-1B Cap Has Been Reached but Fewer Applications than in 2016

The government update on H-1B cap visas as of April 17, 2017:

USCIS announced on April 7, 2017, that it has received enough H-1B petitions to reach the statutory cap of 65,000 visas for fiscal year (FY) 2018. USCIS has also received a sufficient number of H-1B petitions to meet the U.S. advanced degree exemption, also known as the master’s cap.

USCIS received 199,000 H-1B petitions during the filing period, which began April 3, including petitions filed for the advanced degree exemption. On April 11, USCIS used a computer-generated random selection process, or lottery, to select enough petitions to meet the 65,000 general-category cap and the 20,000 cap under the advanced degree exemption. USCIS will reject and return all unselected petitions with their filing fees, unless the petition is found to be a duplicate filing.

The agency conducted the selection process for the advanced degree exemption first. All unselected advanced degree petitions then became part of the random selection process for the 65,000 cap.

Note:  The 199,000 petitions received this year is  a 15.7 percent decrease from the 236,000 petitions that USCIS received during last year’s filing period.

USCIS Steps Up Efforts to Detect H-1B Visa Fraud and Abuse

Release from the USCIS on April 3, 2017

WASHINGTON – U.S. Citizenship and Immigration Services (USCIS) today announced multiple measures to further deter and detect H-1B visa fraud and abuse. The H-1B visa program should help U.S. companies recruit highly-skilled foreign nationals when there is a shortage of qualified workers in the country. Yet, too many American workers who are as qualified, willing, and deserving to work in these fields have been ignored or unfairly disadvantaged. Protecting American workers by combating fraud in our employment-based immigration programs is a priority for USCIS.

Beginning today, USCIS will take a more targeted approach when making site visits across the country to H-1B petitioners and the worksites of H-1B employees. USCIS will focus on:

  • Cases where USCIS cannot validate the employer’s basic business information through commercially available data;
  • H-1B-dependent employers (those who have a high ratio of H-1B workers as compared to U.S. workers, as defined by statute); and
  • Employers petitioning for H-1B workers who work off-site at another company or organization’s location.

Targeted site visits will allow USCIS to focus resources where fraud and abuse of the H-1B program may be more likely to occur, and determine whether H-1B dependent employers are evading their obligation to make a good faith effort to recruit U.S. workers. USCIS will continue random and unannounced visits nationwide. These site visits are not meant to target nonimmigrant employees for any kind of criminal or administrative action but rather to identify employers who are abusing the system.

Employers who abuse the H-1B visa program negatively affect U.S. workers, decreasing wages and job opportunities as they import more foreign workers. To further deter and detect abuse, USCIS has established an email address which will allow individuals (including both American workers and H-1B workers who suspect they or others may be the victim of H-1B fraud or abuse) to submit tips, alleged violations and other relevant information about potential H-1B fraud or abuse. Information submitted to the email address will be used for investigations and referrals to law enforcement agencies for potential prosecution.

Existing H-1B Fraud Measures

Since 2009, USCIS has conducted random administrative site visits to ensure that employers and foreign workers are complying with requirements of the H-1B nonimmigrant classification. USCIS refers many cases of suspected fraud or abuse to U.S. Immigration and Customs Enforcement (ICE) for further investigation.

Additionally, individuals can report allegations of employer fraud or abuse by submitting Form WH-4 to the Department of Labor’s (DOL) Wage and Hour Division or by completing ICE’s HSI Tip Form.

New Event: Trump Travel Ban – Know Your Rights Conference Call

Trump Travel Ban – Know Your Rights Call-in – Wednesday, March 15, 2017, 12:30 p.m. CT. Are you wondering how the new immigration travel ban and other immigration restrictions affect your travel plans, your immigration case, or your business operations?Get your questions answered about the March 6 Executive Order and the current immigration landscape. Know your rights when dealing with immigration officials or law enforcement, even if you are U.S. citizen.

Join attorney Ann Massey Badmus for an immigration Q&A conference call on Wednesday, March 15 at 12:30 p.m. Central Time/1:30 p.m. Eastern Time/10:30 a.m. Pacific Time. CALL DETAILS, WEDNESDAY, MARCH 15, 2017, Please note your time zone:

12:30PM-1:30PM CENTRAL TIME
1:30PM-2:30PM EASTERN TIME
11:30AM-12:30PM MOUNTAIN TIME
11:30AM-12:30PM MOUNTAIN TIME

To join the call by telephone: Dial: 515-604-9300 Access Code: 354490

To join the call online: Online Meeting Link: https://join.freeconferencecall.com/ann_badmus, Online Meeting ID: ann_badmus

Call and get answers to your questions about this immigration news.

When to File Your Adjustment of Status Application for Family-Sponsored or Employment-Based Immigrant Visas: March 2017

Are you seeking to adjust your status and become a U.S. permanent resident under a family-sponsored or employment-based preference immigrant visa? If you have not yet had a relative or employer file an immigrant visa petition on your behalf, please learn more about the Adjustment of Status Filing Process. If you already have a petition filed or approved on your behalf, you may have to wait for an available visa in your category (if applicable) before you can file your Form I-485, Application to Register Permanent Residence or Adjust Status.

Key points to remember:

  • You must use the Department of State (DOS) visa bulletins charts listed on the USCIS website (not the DOS website) to determine when to file your adjustment of status application.
  • You need to know your priority date, which is generally the date when your relative or employer properly filed the immigrant visa petition on your behalf with USCIS. If a labor certification is required to be filed with your immigrant visa petition, the priority date is the date the labor certification application was accepted for processing by the Department of Labor.
  • You need to check the visa bulletin monthly  if you have already applied for adjustment of status and but have not been approved.  Visa availability can move backwards (retrogress) so even if you have applied for adjustment, your priority date must be current and a visa available before your green card application can be approved.

Visit the USCIS website for further details on when you can apply for adjustment of status if you are in the green card queue.

Green Card Application Portability – 5 Questions to Ask Before Changing Jobs While Waiting for Your Green Card Approval (2017 Update)

Green card applicants often ask if they are able to change employment while waiting for final approval. The answer is yes, if you follow green card portability rules.

According to the rules, if your I-485 application has been pending for 180 days or more, you are eligible to change jobs or employers and continue your green card application. However, portability rules have pitfalls you must avoid, or your green card application can be denied.

Here are five key questions you need to get answered before making any change in employers.

1. Is my application dependent upon my employer? If your green card category depends upon a job offer, then your application is dependent upon your employer (“sponsor”) and you must observe portability rules to avoid denial of your green card application. The green card categories requiring a job offer and subject to portability rules are EB-1B Outstanding Researcher, EB-1C Multinational Manager, EB-2 and EB-3 workers based upon labor certification.

Green card applications based upon EB-1 Extraordinary Ability and EB-2 National Interest Waiver do not require a job offer and do not fall under portability rules. Therefore, applicants in these categories can change employers at any time so long as they continue to work in the field of extraordinary ability or national interest.

2. Has the I-140 petition been approved? If your I-140 petition has been approved, then your chances of approval based upon portability are better. Here’s what you need to keep in mind.

If you change positions after your I-485 has been pending for 180 days and your I-140 is approved, then your green card can be approved, even if your sponsor cancels the I-140 petition or goes out of business. On the other hand, if you change positions while your I-140 petition is awaiting approval, your sponsor’s withdrawal of the I-140 petition will cause denial of your I-485 application.

If your employer withdraws the I-140 after 180 days of the I-140 approval or after your I-485 application has been pending 180 days, the I-140 petition will remain approved and portability applies. Of course, the government can revoke the I-140 petition at any time for other reasons, such as fraud or other ineligibility. As a result, your I-485 application will be denied even if it has been pending for 180 days.

3. Has the I-485 application been pending for more than 180 days?Even if your I-140 petition is approved, it’s risky to leave your employment before the “safe harbor” period starts.

Although the government may not deny your I-485 application on the sole basis that you left your employer before 180 days have passed, it can issue a request for evidence (RFE) to determine whether the original offer of employment was bona fide. Your sponsor’s support could be necessary to respond to the RFE and its refusal to cooperate could mean denial of your I-485 application.

Also, if your sponsoring employer withdraws its sponsorship within 180 days of the I-140 approval and before your I-485 application has been pending 180 days, the I-140 petition will be revoked. That means your I-485 application will be denied unless a new I-140 petition is substituted.

To avoid these risks, wait until your I-485 application has processed for 180 days before changing positions.

4. Is the new employment in the “same or similar” occupation? The rules no longer require a comparison of the standard occupational code (SOC) of the new position to the original sponsored one. Instead, to determine whether the new position is the same or similar to the sponsored position, the government will compare the job descriptions, wages offered, and required skills, experience, education, and training between the two jobs.

Also, self-employment is eligible for portability as long as all other criteria for portability has been met.

5. Will the new employer sign off on the I-485 Supplement J for your I-485 application? You must request portability by submitting Supplement J to the form I-485, Confirmation of Bona Fide Job Offer or Request for Job Portability. Supplement J can be filed before or after you change jobs and must be signed by the new employer. In the Supplement J, you must fill out information about the new job so the government can determine whether it is similar to the sponsored position. Be sure the new employer agrees to cooperate and sign the Supplement J before you change jobs.

I hope this article helps you understand basic immigration requirements, but please don’t consider it as legal advice or legal opinion about your specific circumstances. Portability rules are complex so contact a qualified immigration attorney to assure a safe transition to your new employment.

For legal advice and guidance for your unique situation, you are invited to schedule an immigration strategy session with me.

Immigration Attorneys for Foreign National Physicians