3 New Changes for H1-B Filers in 2019

By Jessica Suotmaa 0

Here at Lum Law Group, we have already begun preparing H1-B petitions on behalf of our clients.  If you plan on filing this year, do not wait till mid-March (it might be too late!) Contact our office for answers and assistance on filing your H1-B petition this year!

On January 31, 2019, DHS has issued the  final H1-B ruling. on the anticipated H1-B processing changes.  On January 31, 2019, USCIS published the final H1-B ruling.

1. Having a U.S. Master’s Degree Helps

USCIS’ new “reverse selection order” will apply to the upcoming FY 2020 filing season. If you’re unsure as to what the word “reverse” refers to, here’s how the random visa selection used to work:

  1. Select 65,000 from a pool of advanced degree exempt “regular” bachelor’s degree holders.
  2. Select 20,000 from a pool of master’s degree holders.

Here’s how the current selection will work:

  1. Select 65,000 from a pool that includes both “regular” bachelor’s degree and advanced degree holders.
  2. Select 20,000 from a pool that includes the remaining master’s degree holders.

The selection order reversal will increase the chances of a advanced degree holder to “win” the H1-B lottery by an estimated 16%, and decrease the chances for a bachelor’s degree only employee to be selected.

2. Early Elimination via Pre-registration

The new pre-registration requirement will require the employer (company) petitioning for employees to first register the employee electronically.  The electronic registration will be quick and easy, requiring only basic information such as the employee’s name, citizenship, passport number, job title, and whether the employee has a U.S. master’s degree.

But, it will only be open for a limited period of time, possibly only 14 days (the minimum). During this time, petitioners can delete an inaccurate registration and resubmit, as well as edit a registration prior to submission.

USCIS will then select from pre-registered petitioners. What this means is that many will be rejected at the pre-selection process and not allowed to join the H1-B visa lottery selection.

USCIS states the purpose of pre-registration is to reduce the number of H1-B petitions it receives, screen for duplicates, and to reduce H1-B fraud and not for eligibility purposes. However, the inclusion of a “U.S. Master’s Degree” in the pre-selection process suggests USCIS may prefer U.S. master degree holders over other pre-registrations.

3. H1-B Filing More Affordable

The new rule goes in-depth on the cost analysis of the new implemented changes to H1-b non-immigrant visa processing. The report analyzes both agency savings and petitioner savings.  Where previously petitioners would have to hire someone, either in-house or external, to prepare Foreign Labor Certificate and the entire Form 129 – H1-B Specialty Occupation Worker, the pre-registration would reduce the cost of trying.  A failed pre-registration screening will result in the petitioner saving significant amounts of money in preparation fees and USCIS filing fees.

In addition, many small businesses who did not have the budget to apply for H1-B given it’s high-entrance cost and risk of failure can now more readily join the lottery.

 

Now that we’ve highlighted the three key takeaways from the new H1-B rule, you might wonder about premium processing? On January 28th, 2019, USCIS published a press release stating it will resume premium processing cap H1-B petitions for FY 2019.  Please contact us if you have any questions regarding this issue.

 

J-, M-, and F-visa holders! Will you be unlawfully present after August 9, 2017?

By Jessica Suotmaa 7

Update:  On August 9, 2018, USCIS updated their previous policy memorandum. 

Under the revised policy memorandum, F- and M- nonimmigrant visa holders who “fall out of status” while their applications are pending but timely applied for reinstatement of status will have their “accrual of unlawful presence suspended while their application is pending.”

On May 11, 2018 United States Citizenship and Immigration Services (USCIS) released a policy memorandum on “…Accrued Unlawful Presence by Non-immigrant Students and Exchange visitors”, which will specifically apply to current F-, M-, and J-visa holders (and their dependents).  The policy is important to existing visa holders who may have violated their visa status or who do not plan ahead to renew their visas to avoid a “gap”.  The policy will come into effect on August 9, 2018.

What does “unlawful presence” mean and what is its significance?

USCIS defines “unlawful presence” as presence in the United States without being admitted or paroled, e.g. crossing the border illegally or as any time after the expiration of lawful presence as authorized by the Department of Homeland Security (DHS).

So what is wrong with unlawful presence? Besides the fact that anyone who accrues “unlawful presence” is breaking the law, if a person accrues enough unlawful presence, they become inadmissible according to Section 212(a)(9)(B) and 212(a)(9)(C)(i) of the Act.  Depending on how long one was illegally present in the U.S., one could be barred from reentering the U.S. for 3 years or 10 years after departure.

In practice, this means a student who studies in the U.S. could overstay his visa, forget to renew in time, or be delayed by his school, and begin accruing unlawful presence.  If enough is accrued, then the student will not be able to renew his F-1 visa and continue his studies, or if he is finished with his studies, will not be able to obtain a non-immigrant visa to return to the U.S. for a visit. Casual tourism aside, said student might need to make a business trip in his future job position, but be banned from obtaining it, which may then affect his career.

When do I begin to accrue “unlawful presence”?

If you failed to maintain your non-immigrant status before August 9, 2018, then you will begin accruing unlawful presence on August 9, 2018 or on one of the following dates, whichever is earlier:
  • The day after your DHS denial for immigration benefit if DHS found you in violation of your non-immigrant status;
  • The day after your I-94 expired;
  • The day after the decision for removal or deportation by an Immigration Judge or the Board of Immigration Appeals (BIA).
After August 9, 2018, you could begin accruing “unlawful presence” on the following:
  • The day after you stop your studies/work/exchange program or the day after you begin engaging in an “unauthorized activity”;
  • The day after you complete your studies or exchange program, including any practical training or grace period, or the day after you begin engaging in an “unauthorized activity”;
  • The day after your I-94 expires;
  • The day after the decision for removal or deportation by an Immigration Judge or the Board of Immigration Appeals (BIA).
If you were wondering, “unauthorized activity” usually refers to working without a work permit.

What if I leave after accruing “some” unlawful presence?

The policy status that you would still accrue unlawful presence, and if you return to the U.S., violate your non-immigrant visa again, the unlawful presence will be consolidated from your previous stay.  In addition, if you re-enter illegally, without being admitted or paroled, the unlawful presence will also be consolidated with any previous unlawful presence.

What if I am only unlawfully present for a few days?

It is difficult to say what would happen.

The policy states that if you are unlawfully present for 180 days or more, whether consecutively or after multiple re-entries, you could be subjected to a 3- or 10-year ban.

It also reminds that recipients of 10-year-bars tend to not be given any non-immigrant visas, admission, or adjustment of status, even after the ten year period has passed unless they are eligible for a waiver.

How Jeff Sessions' Recent Decision Affects Asylum Seekers

By Jessica Suotmaa 0

You may have heard in the news that the current Attorney General, Jeff Sessions, has been making changes this  year.  As the Attorney General, Sessions has the authority to refer cases to himself for review and to overturn a decision by the Board of Appeals (BIA).  Most recently, he rendered moot the 2014 BIA decision re: The right to a full hearing for all asylum and withholding of removal applicants.  

This BIA decision upheld a 1989 ruling where hearings were described as “an essential aspect of the asylum adjudication process for reasons related to fairness . . . and to the integrity of the asylum process itself.” However, the Honduran asylee later withdrew his application and appeal due to marriage to a U.S. Citizen, so Sessions has declared the decision irrelevant (and thereby inapplicable towards future cases).

Where before the Department of Justice (DOJ), Immigration Courts had to allow every asylee and applicant for withholding of removal to appear in front of a judge with a fair chance to present their case even if the USCIS officer denied them based on their asylum application and interview, now cases viewed as frivolous or fraudulent can be denied without the opportunity for a full hearing.

Immigration Court processing backlog in Los Angeles IC Graph credit: Immigration Backlog Tool

Sessions made this decision based on the overwhelming backlog at the Immigration Courts, where cases may remain pending or continued for years on end.  On average, we estimate that before this year, each asylum applicant from China had about three years to live and work before their asylum interview, decision, or Notice to Appear (NTA). Today, new asylum applicants are scheduled for an interview within one month!

What is a merit-less asylum application?

An application for asylum must meet the following federal requirements in order to be legally viable:

  • a history of persecution, or hostilities, based on your race, religion, nationality, membership in a particular social group, or political opinion
  • a well-founded fear of future persecution or ill-treatment based on your race, religion, nationality, membership in a particular social group, or political opinion
  • come from a country with a government that will not help them
Immigration Court backlog by nationalityGraph credit: Immigration Backlog Tool 

What does this mean in practice?

  • Asylum applicants who file their applications without assistance from qualified legal representation may be at a disadvantage.
  • Asylum applicants should prepare better for their asylum interviews and ensure that they have a qualified translator, if necessary.
  • Immigration Court judges can deny an asylum application or application for withholding of removal without even seeing the applicant if he or she finds the application is without merit.
  • Refugees who illegally cross the U.S. border and apply for asylum are detained as “criminals” (entering illegally is a misdemeanor while reentry is a felony) and may be denied near immediately.

What else might Sessions change?

  • Sessions is also reviewing a case that granted asylum to a woman suffering from domestic abuse.  If the decision is overturned, applicants may not be able to qualify for asylum based on domestic violence (also described as “private violence”).