March 2020

Immediate Three-Year Backlog Imposed on EB-3 and EB “Other Workers” Visa Categories in March; China-Mainland Born EB-5 Category Advances Rapidly

The Department of State’s Visa Bulletin for March 2020 announced several notable developments:

• An immediate three-year backlog on EB-3 and EB “Other Workers” categories worldwide as of March, with implications for those with pending labor certifications and those whose status is expiring. The final action date listed is January 1, 2017, imposed immediately as of March for all future requests for visa numbers. “No forward movement of this date is expected in the foreseeable future,” the bulletin notes.
• A “very rapid” advancement of the final action date for the EB-5 category, China-mainland born. The bulletin notes that despite a large number of registered China fifth preference demand, there are not enough applicants actively pursuing final action on their cases to fully use the numbers expected to be available under the annual limit.

Details: March Visa Bulletin is here.

Update: USCIS to Launch Electronic H-1B Registration Process Starting March 1

U.S. Citizenship and Immigration Services (USCIS) is poised to implement a new electronic H-1B registration process for fiscal year 2021 H-1B cap-subject petitions. The agency recently released new details.

USCIS will open an initial registration period from noon ET March 1, 2020, through noon ET March 20, 2020, for the FY 2021 H-1B numerical allocations. Registrants and representatives may create accounts beginning February 24, 2020, and register throughout the initial registration period.

USCIS released updated details on February 21, 2020:

Submitting an H-1B registration requires a USCIS online account. The appropriate type depends on the submitter’s role:

• Representatives will use the same type of representative account that is already available and may use an existing account.
• Prospective petitioners submitting their own registrations (U.S. employers and U.S. agents, collectively known as “registrants”) will use a new “registrant” account that will be available beginning Feb. 24.

Representatives may add clients to their accounts at any time, but both representatives and registrants must wait until March 1 at noon ET to enter beneficiary information, submit registrations, and pay the $10 non-refundable registration fee for each beneficiary.

The initial registration period will run from noon Eastern March 1 through noon Eastern March 20, 2020. Account creation and registration will remain available throughout this period. Selections will take place after the initial registration period closes, so there is no requirement to register on March 1.

If USCIS receives enough registrations by March 20, the agency will randomly select registrations and send selection notifications via users’ USCIS online accounts. USCIS said it intends to notify account holders by March 31, 2020.

An H-1B cap-subject petition may only be filed by a petitioner whose registration for that beneficiary was selected in the H-1B registration process.

To create an H-1B registration account, go to https://my.uscis.gov/ on or after February 24. From March 1, employers are advised to work closely with their ABIL law firm to register and submit all registrations by March 20, 2020. The filing period for submitting H-1B petitions begins on April 1, 2020, and will end no earlier than June 30, 2020. USCIS will not accept late filings.

Details:

• USCIS announcement issued February 21, 2020 is here.
• USCIS announcement issued January 10, 2020 is here.
• USCIS H-1B electronic registration process information with links is here.
• Federal Register notice is here.

USCIS, DOS to Implement Public Charge Rule After Supreme Court Decision Staying Preliminary Injunction

U.S. Citizenship and Immigration Services (USCIS) plans to implement the public charge rule nationwide on February 24, 2020, following a Supreme Court ruling issued February 21, 2020, staying a preliminary injunction in Illinois. USCIS will only apply the final rule to applications and petitions postmarked (or submitted electronically) on or after February 24, 2020. The Department of State (DOS) also will implement public charge requirements for overseas applications on the same date, including the new DS-5540, DOS Public Charge Questionnaire. DOS has indicated that it may apply the DS-5540 to applicants who have previously been found documentarily qualified for a visa before February 24.

The final rule, issued in August and originally scheduled to take effect in October, prescribes how the Department of Homeland Security will determine whether a person is inadmissible to the United States based on a “likelihood of becoming a public charge at any time in the future,” USCIS noted. The final rule also addresses USCIS’s “authority to issue public charge bonds in the context of applications for adjustment of status,” and includes a requirement that those seeking an extension of stay or change of status “demonstrate that they have not received public benefits over the designated threshold since obtaining the nonimmigrant status they seek to extend or change.”

Details:

• Supreme Court opinion issued February 21, 2020, including a dissent by Justice Sonia Sotomayor, is here.
• DS-5540, DOS Public Charge Questionnaire is here.
• Updated DOS Foreign Affairs Manual section on public charge is here.
• USCIS revised forms and updated policy guidance is here.
• USCIS policy alert is here.
• USCIS announcement is here.
• Immigrant Legal Resource Center, Public Charge Toolkit, including a “Totality of the Circumstances Worksheet” with ideas for positive evidence, is here.
• National Immigration Law Center, Protecting Immigrant Families page is here; summary of developments is here.
• News article is here.

CNMI News: Application Period Opens for New Status for Long-Term Residents; Petitions Accepted Under Disaster Recovery Workforce Act

U.S. Citizenship and Immigration Services (USCIS) announced several developments for the Commonwealth of the Northern Mariana Islands (CNMI):

• USCIS opens application period for new status for long-term residents of CNMI. The application period opened on February 19, 2020 and will run until August 17, 2020. Applicants must file Form I-955, Application for CNMI Long-Term Resident Status, together with Form I-765, Application for Employment Authorization. USCIS noted that CNMI long-term status is not the same as lawful permanent residence and does not lead to lawful permanent resident status.
• USCIS accepts petitions under the CNMI Disaster Recovery Workforce Act. Petitioners should file Form I-129CW, Petition for a CNMI-Only Nonimmigrant Transitional Worker, along with a cover sheet with details outlined in the announcement (see link below). Prospective employers may only petition under the Disaster Recovery Workforce Act for CW-1 construction workers who are nationals of a country designated as eligible to participate in the H-2B visa program during calendar year 2018 (for a list of designated countries, see here).

Details:

• USCIS announcement on application period for long-term residents, which explains eligibility requirements is here.
• USCIS announcement on CNMI Disaster Recovery Workforce Act petitions, which includes details on eligibility requirements is here.

USCIS Suspends Use of Pre-Paid Mailers for FY 2021 H-1B Cap-Subject Petitions

U.S. Citizenship and Immigration Services (USCIS) announced on February 14, 2020, that it will not use pre-paid mailers to send out any communications or final notices for fiscal year 2021 cap-subject H-1B petitions, including those requesting consideration under the advanced-degree exemption.

USCIS noted that the process of printing and mailing the cap-subject H-1B petition approval notices by first-class mail is fully automated. “Using pre-paid mailers requires a separate, more time-consuming manual process. The existing automated process is more time efficient for both petitioners and USCIS. Because of this, we will use first-class mail as we work to process all cap-subject petitions in a timely manner,” the agency said.

Details: USCIS announcement is here.

Trump Administration Quietly Uses Technicalities To Delay New Visa Applications

According to a recent report, U.S. Citizenship and Immigration Services (USCIS) has begun automatically returning asylum applications and visa applications for certain categories if any fields are not filled in, whether or not the applicant has any information to put in the field. The resulting delays in some cases can lead to documents expiring or people losing their eligibility for immigration benefits.

Applications reportedly have been returned at least in part because a person had no middle name and thus did not fill in the middle-name field; because a person did not fill in a field for “Apt. #” even though they lived in a house; because a person left a “prior spouses” field blank since they were never married; because a child left a dates of employment field blank after entering “none” for employment history; and because a person had only three siblings so left the fourth-sibling field blank.

In response to queries from a reporter, USCIS said applicants “must provide the specific information requested for all the questions asked.” USCIS said that if there is no information to put in a field, the applicant should mark it “none,” “not applicable,” or “unknown.” This note is included on page 5 of the instructions for the asylum application, for example. This requirement was first applicable to asylum applications and more recently was extended to U visa applications.

Details:

• “This Latest Trick from the Trump Administration is One of the Most Despicable Yet,” is here.
• Asylum application is here.

ICE Ramps Up Efforts to Police STEM OPT Program

According to reports from the field, U.S. Immigration and Customs Enforcement (ICE) has increased audits of employers who hire STEM OPT (science, technology, engineering, and math optional practical training) students. The audits are being conducted to verify that students are being employed in a manner consistent with the minimum requirements of the STEM OPT program. Audits are occurring in the form of onsite inspections, often conducted on short notice.

Eligible F-1 nonimmigrant students with STEM degrees from Student and Exchange Visitor Program-certified and accredited U.S. colleges and universities may apply for a 24-month STEM OPT extension. Interested F-1 students must apply for and receive an employment authorization document from U.S. Citizenship and Immigration Services (USCIS). To employ a STEM OPT student, employers must agree to a training plan that describes how the employment will further the foreign national’s skills in their academic discipline. The training plan must be completed on Form I-983, Training Plan for STEM OPT Students. Form I-983 includes a list of obligations to which, upon signing, an employer is bound to obey. Once completed, Form I-983 is submitted to the foreign national’s university for approval. If approved, the foreign national may apply to USCIS for a work permit.

Details:

• Klasko’s blog on this is here.
• DHS webpage on STEM OPT is here.

Trump Administration Attempts Crackdown on ‘Sanctuary’ Policies

The Trump administration has launched several efforts in an attempt to crack down on “sanctuary” policies.

For example, the Trump administration is challenging the state of New Jersey and King County, Washington (the county that includes Seattle) with lawsuits against their sanctuary policies. Among other things, the Department of Justice objects to King County’s policy of preventing U.S. Immigration and Customs Enforcement (ICE) from using King County International Airport (Boeing Field) to fly out people being deported. In 2017, Seattle sued the Trump administration over its threat to withhold federal money from “sanctuary cities.”

The Trump administration also plans to deploy 100 tactical U.S. Customs and Border Protection (CBP) officers from February to May in 10 U.S. cities, to work with ICE. The cities include Atlanta; Boston; Chicago; Detroit; Los Angeles; Newark, New Jersey; New York City; Los Angeles; and San Francisco. According to a CBP spokesperson, the officers will “enhance integrity of the immigration system, protect public safety, and strengthen our national security.” Among other things, CBP agents will support immigration-related arrests.

The latest efforts come on the heels of the Trump administration’s suspension of New Yorkers’ eligibility to enroll in “trusted traveler” programs like Global Entry, over which the New York attorney general has filed suit.

Details:

• New York lawsuit is here.
• DOJ statement on King County lawsuit is here.
• News articles NBC News first article, NBC News second article, NBC News third article, NY Times, Seattle Times

USCIS Releases Statement in Response to Coronavirus Epidemic

U.S. Citizenship and Immigration Services (USCIS) recently released a statement summarizing its response to the worldwide spread of COVID-19, popularly known as the “coronavirus.” Concerns about the virus have led to massive efforts to contain it, including quarantines and lockdowns.

Among other things, USCIS said it is temporarily closing its offices in Beijing and Guangzhou. “We will reschedule all affected appointments and will send new appointment notices to applicants,” the agency said. Interested persons can check USCIS’s Beijing and Guangzhou webpages for status updates (see links below).

Details:

• USCIS statement is here.
• USCIS Beijing Field Office is here.
• USCIS Guangzhou Field Office is here.
• News article on official name for virus is here.

KLASKO NEWS

FIRM NEWS

Save the Date for the 16^th Annual Klasko Spring Seminar! Registration is now open for the seminar which will take place at the Union League of Philadelphia on Wednesday, April 22, 2020. Click here for details and to register.

This year’s Spring Seminar theme will be… Roaring into the 2020s: New Strategies for a New Era!

IN THE NEWS

H. Ronald Klasko
Ron’s third and final blog in a series addressing the E-2 visa option was re-published by JD Supra legal intelligence news.

Lisa T. Felix
On February 28^th, Lisa’s contributions to CorporateLiveWire’s recent virtual roundtable on immigration hot topics was picked up by JD Supra.

H. Ronald Klasko
Ron Klasko shared his insights with NES Financial on what EB-5 will look like in 2020 and beyond.

William A. Stock
Bill was quoted in a Fox Business article on businesses that want high-skilled foreign workers, but are wary of the new visa registration process. The article was later re-published by Yahoo! Finance.

Allie K. Dempsey
In their People on the Move section, The Philadelphia Business Journal welcomes Allie Dempsey as she joins Klasko as a senior associate attorney.

RECENT SPEAKING ENGAGEMENTS

William A. Stock
On February 4^th, Bill gave an immigration update at Temple University.

Michele G. Madera
On February 5^th, Michele spoke at Temple University to students about navigating the immigration system after graduation.

Elise A. Fialkowski
Elise was a guest speaker at Carnegie Mellon University and talked to students about options after graduation, with a special focus on the H-1B visa category.

Andrew J. Zeltner
On February 28^th, Drew spoke at the about hot topics and legislative updates.

Elise A. Fialkowski
Elise spoke at the 17^th Annual AILA New England Immigration Conference, discussing how to prepare for audits and inspections in the Trump era.

UPCOMING SPEAKING ENGAGEMENTS

H. Ronald Klasko
Ron will be speaking at the 2020 AILA Spring Conference & Webcast and giving insight about litigation petition denials on March 6, 2020.

Elise A. Fialkowski
On March 11, 2020, Elsie will be presenting at University of Delaware and speaking on immigration options after graduation.

Michele G. Madera
Michele will be speaking at the AILA Midwest Regional Conference on the ethics of how to manage your practice under challenging conditions on March 13, 2020.

Elise A. Fialkowski
On March 16, 2020, Elise will be speaking at the University of Pennsylvania about O-1 visa for design students.

H. Ronald Klasko
Ron Klasko will be speaking abroad at the Visa Franchise in London addressing E-2 visa and citizenship by investment on March 25, 2020.

ICYMI: RECENT BLOG POSTS AND ALERTS

Client Alert: ICE Ramping Up Efforts to Police the STEM OPT Program
Associate Jordan Gonzalez covers what the STEM OPT program is, what to watch out for, and what to do as ICE increases on-site inspections in this client alert.

Why the Guilford College Decision is So Important
Ron Klasko explains the importance of the Guilford College Decision to foreign students and exchange visitors, universities, hospitals, research institutions, and immigration lawyers in this blog post. 

When Immigration Clashes with Contract and Employment Law: USCIS’ Top Misinterpretations of Master Service Agreements
In this article, Maria Mihaylova talks about the USCIS’ top misinterpretations of the master service agreement.

EB-1 vs. EB-2: A Research-Based Petition Comparison
In this blog post, find out the differences between EB-1 and EB-2 for individuals in research fields.

FIRM FEATURE

On February 14th, the Gnomes of Love came by the Klasko Law Firm and sprinkled lots of love in the air! The Gnomes brought a jar full of candy with them, and one lucky staffer accurately guessed how many pieces of candy were in the jar. The winner got to keep the jar full of goodies along with another special prize!

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This newsletter was prepared with the assistance of ABIL, the Alliance of Business Immigration Lawyers, of which Klasko Immigration Law Partners is an active member.