Immigration Law Update

August 2018

USCIS Extends and Expands Premium Processing Suspension for Certain H-1B Petitions

USCIS this week announced that it is extending the suspension of premium processing for cap-subject H-1B petitions. In addition, the agency announced that it will broaden this suspension to include certain categories of H-1B petitions that are not subject to the H-1B quota. The premium processing suspension is expected to last until February 19, 2019.

What does this mean?

The premium processing suspension heightens the risk that H-1B petitions with an October 1 start date will not be adjudicated by then for those cases subject to the H-1B cap.
The expansion of the premium processing suspension notably applies to the following key types of cases from employers not exempt from the cap: H-1B portability filings, filings for employees promoted to a new job, and filings for employees who have moved to a new worksite.

Current processing of H-1B petitions is approximately six months. Although the stated goal of this initiative is to reduce standard H-1B processing times, the suspension of premium processing removes a valuable outlet for H-1B workers and their employers to quickly obtain their H-1B approval, which often times is very important for driver’s license renewal, international travel, and peace of mind. If you have additional questions regarding this change, or need assistance preparing an H-1B petition, please contact Karen Moss or Brad Ortman via email or telephone at 216-621-7227.

Trump Administration Intent on Eliminating Employment Authorization for Qualifying H-4 Spouses of H-1B Workers

For months there have been rumors that the Trump administration was going to eliminate employment authorization for the qualifying H-4 spouses of H-1B nonimmigrants who currently have it. In a recent court filing in the Save Jobs USA v. DHS case, DHS explained through a status report that it is seeking to introduce a rule that would make all H-4 spouses ineligible for employment authorization. Final clearance for the rule is ongoing. We encourage H-4 spouses that seek to continue working to contact us to come up with an alternate plan in the event their right to work authorization is revoked.

New Unlawful Presence Rules Go into Effect Affecting Millions of Foreign Students and Exchange Visitors

New rules that dramatically expand the reach of the “unlawful presence” doctrine have gone into effect for students in F visa status and J exchange visitors, as well as M students.

More than one million students and exchange visitors are affected by this change. Under the new rules, students and exchange visitors start accruing unlawful presence once they are no longer pursuing a full-time course of study or if they violate their status before the completion of their program. Unlawful presence would also apply if they remain in the United States after they complete their program and any authorized practical training, plus the authorized grace period.

Previously, determinations of “unlawful presence” for students and exchange visitors were not made until USCIS or an Immigration Judge formally found that a status violation occurred. This change in policy attaches much greater consequences to status violations of students and exchange visitors, making it easier for the government to put them in removal proceedings or to bar them from the United States if the unlawful presence accrues beyond 180 days.

Nearly 20% of Children Forcibly Separated from their Parents by the Trump Administration Remain Separated One Month After a Federal Judge’s Deadline for them to be Reunited

According to PBS, more than 500 migrant children remain separated from their parents and under the federal government’s care, based on court filings from last week. It’s been nearly a month since the court-imposed deadline for the Trump administration to reunify all migrant families that were separated as part of its “zero tolerance” policy earlier this spring. The administration was expected to reunify more than 2,600 migrant children, age 0-17, with their parents by July 26. The government blew past that deadline, with more than 1,600 children remaining separated when the date passed.

Of the children who remain separated from their parents it is notable that more than 2/3 of them are in situations in which their parents were deported or “voluntarily” returned to their home countries. Twenty-four of these children are under age 5. In slightly more than 10% of the cases the adults had a “red flag” concerning their background checks.

EB-1 Visa Number Retrogression to Continue to December or Possibly First Quarter of 2019

Applicants for permanent residence in the EB-1 category, which includes multinational managers and executives, outstanding professors and researchers, and aliens of extraordinary ability, may experience delays in obtaining permanent residence in the coming months. The retrogression of Immigrant visa quota numbers for this category, which started in August and was originally only expected to last until October, now is expected to last until December or into 2019.

U.S. Opens E Visa Category to Citizens of New Zealand

In a rare show of unity on an immigration issue, the U.S. Senate unanimously extended the E visa designation for treaty traders and investors to citizens of New Zealand. This change is effective immediately, and it opens up this category to New Zealand business owners and entrepreneurs who plan to carry on substantial trade in the United States or seek to invest in the United States to start or expand business operations.

USCIS Updates STEM OPT Extension Reporting Requirements

USCIS recently updated the reporting responsibilities for students and employers of students pursuant to STEM OPT (Optional Practical Training). Under these changes, notably employers must report within five business days the student’s termination of employment to the Designated School Official (DSO) at the student’s university through submission of a modified Form I-983. Students are required to report changes to their name or their employer’s name and address to their DSO within ten business days.

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If you have questions concerning any of the other items above, please contact Karen Moss or Brad Ortman of the Immigration Law Group at Nicola, Gudbranson & Cooper via email or at (216) 621-7227. Click here to sign up for our Immigration Law Update E-Newsletter

Bradley L. Ortman and Karen Gabriel Moss
Nicola, Gudbranson & Cooper LLC

_{This Immigration Law Update contains general information that should not be considered legal advice or legal opinion concerning individual situations. Legal counsel should be consulted for specific advice.}