It’s Official: H-1B Registration Required for Cap-Subject Petitions

Registration Dates: March 1–20, 2020

USCIS announced that it is implementing the registration process for employers seeking to file H-1B cap-subject petitions, including those eligible for the advanced-degree exemption, for FY2021. Such employers must first electronically register and pay the associated $10 H-1B registration fee before filing a petition for H-1B visa status for a beneficiary. If approved, the visa would become available on October 1, 2020. The registration period is from March 1 to March 20, 2020. During the initial registration period, we must electronically submit a separate registration naming each foreign national for whom we wish to file an H-1B cap-subject petition. If a sufficient number of registrations are received, USCIS will randomly select the number of registrations projected as needed to reach the H-1B numerical allocations after the initial registration period closes, but no later than March 31, 2020. Prospective petitioners with selected registrations will be eligible to file a cap-subject petition only for the foreign national named in the registration. Moreover, USCIS will not consider a cap-subject petition properly filed unless it is based on a valid registration selection for the same beneficiary and in the appropriate fiscal year. Although petitioner-employers can register multiple foreign nationals during a single online submission, duplicate registrations for the same beneficiary in the same fiscal year will be discarded. The H-1B random selection process, if needed, will then be run on those electronic registrations. Only those with selected registrations will be eligible to file H-1B cap-subject petitions. After the petitioner is notified that the registration has been selected, the petitioner will have at least 90 days to submit a completed H-1B petition with supporting documentation. While the online registration form has not yet been formally released to the public, preliminary screenshots of a beta form have been posted, and indicate that information about the petitioner-employer and each requested foreign national worker will be required to complete a registration. As more details become available, we will send Corporate Client Alerts as March 1 draws near.


New DHS Proposed Rule Would Change Fees, Introduce New Forms

DHS promulgated a proposed rule that would make changes to the USCIS fee schedule by a "weighted average increase of 21 percent," or about an 18 percent overall fee hike. The rule would also add new fees, change forms, and introduce several new forms. Some of the most common applications and petitions that would be impacted are:
Current Proposed
I-129H1, Petition for Nonimmigrant Worker (Named H-1B Beneficiaries) $460 $560
I-129L, Petition for Nonimmigrant Worker for L-1 $460 $815
I-129O, Petition for Nonimmigrant Worker for O $460 $715
I-140, Immigrant Petition for Alien Worker $700 $545
I-601A, Provisional Waiver $630 $960
I-612, Waiver of Foreign Residency Requirement $930 $525
I-751, Petition to Remove Conditions on Residence $595 $760
I-821D, DACA Renewal $0 $275
N-400, Naturalization $725 $1,170

  The rule would also impose, for the first time, a $50 fee on asylum applications. If promulgated, the United States would become the fourth country in the world that charges fees for asylum. Included in the proposal is a relaxation of the premium processing deadline, from 15 calendar days to 15 business days. The premium processing fee was recently increased from $1225 to $1410 and now to $1440; together, this will mean slower adjudications at higher prices. Other proposals in this rule include the transfer of over $100 million in USCIS applicant fees to ICE. Comments from the public are due by the end of the year.


Roundup of Key Immigration Court Cases Challenging Administration's Immigration Policy

According to Stuart Anderson, Executive Director of the nonpartisan public policy organization the National Foundation for American Policy, no president has been sued over his immigration policies as much as President Trump. In a recent article in Forbes, Mr. Anderson provides an analysis of the key immigration cases and issues facing the courts. Pending court decisions once decided will affect millions of people, and determine the power of this and future presidents to restrict entry into the United States. The following is adapted from his article: Barring New Immigrants Without Health Insurance: In an October 2019 presidential proclamation, the President used Section 212(f) of the Immigration and Nationality Act (INA) to bar new immigrants from entering the United States without health insurance, potentially reducing legal immigration by hundreds of thousands of people per year. While the Supreme Court permitted the Administration to use §212(f) authority in the travel ban cases, it is not clear that the Court will defer to the President in this instance because the proclamation does not have a clear connection between the harm alleged to be "detrimental" to the U.S. (uninsured patients in America's healthcare system) and the means used. Moreover, the proclamation directly contradicts certain provisions of the INA and the Affordable Care Act. In October, the American Immigration Lawyers Association and other organizations filed a lawsuit seeking to block the proclamation; in November, a federal judge in Oregon issued a temporary restraining order and then a preliminary injunction to halt its implementation until the judge can rule on the merits. Using the Public Charge Regulation to Limit Legal Immigration: In August 2019, DHS published a final rule on inadmissibility on public charge grounds. A nationwide injunction against the public charge rule was entered in October 2019. DACA: On September 5, 2017, then-Attorney General Jeff Sessions announced the end of the Deferred Action for Childhood Arrivals (DACA) program. On November 12, 2019, the Supreme Court heard oral argument on the three consolidated cases challenging the termination of the program as violative of the Administrative Procedure Act, which is the federal law governing administrative agencies, as well as the rights of DACA recipients. A decision is expected in June 2020. Temporary Protected Status (TPS): In October 2018, a federal court blocked the Administration's attempt to rescind TPS for Sudan, Nicaragua, Haiti, and El Salvador, affecting approximately 300,000 people. DHS may not effectuate the termination of TPS for these countries while the order remains in effect. In compliance with court orders, DHS extended the validity of TPS-related documentation for beneficiaries under the TPS designations for El Salvador, Haiti, Honduras, Nepal, Nicaragua, and Sudan through 1/4/21. Asylum and Detention Policy: In September 2019, the Supreme Court, in a brief, unsigned order, ruled that the Administration may enforce new rules that generally forbid asylum applications from migrants who have traveled through another country on their way to the United States without being denied asylum in that country. At the same time, the American Civil Liberties Union has filed several lawsuits against the Administration's asylum and border policies. The lawsuits include claims seeking damages on behalf of thousands of traumatized children and parents separated at the border; challenging expanding "fast-track" deportations without a fair legal process (lack of a court hearing or access to an attorney); challenging a new policy that categorically denies bond hearings to asylum seekers, and a lawsuit asking for access to legal representation for detained migrants who have expressed a fear of being returned to Mexico. Unlawful Presence for International Students: Two USCIS policy memos from 2018, if implemented, would result in many international students who unknowingly violate their immigration status being barred from the United States for 10 years. In May 2019 a federal district court issued an injunction blocking implementation of the memos. Travel Ban Waivers Process: Two cases challenge the waiver process the Trump Administration uses for those targeted by the travel ban as inconsistent and arbitrary. The result has been that few visa applicants have actually been granted a waiver. Diversion of Military Money for Border Wall: A federal judge issued a nationwide injunction blocking the Administration's plans to use $3.6 billion in military construction money to build the border wall. Other lawsuits filed by individuals, corporations, and organizations abound, including suits challenging DHS's interpretation of "specialty occupation" for H-1B visas and DOS's rules requiring people who apply for U.S. visas from abroad to register their social media identifiers with the government. Traditionally, Congress takes the lead on U.S. immigration law and policy. The Trump Administration's attempt to use regulations, executive orders, and presidential proclamations to overcome opposition to its policies in Congress means federal judges will decide if the Administration has gone beyond the law.


Practical FAQs re Submission of DS-160 Nonimmigrant Visa Applications

The State Department's Visa Office recently provided guidance and practical advice on the submission and processing of DS-160 nonimmigrant visa applications based on some frequently asked questions: 

Q: If an applicant completes a Form DS-160 for one consular post and then applies for a nonimmigrant visa at a different post, is a new DS-160 required? 

  A: While it is technically possible for a DS-160 to be transferred from one post to another, the time that it takes to transfer the DS-160 is unpredictable; the transfer can become complicated if the originally listed post recorded the applicant as a no-show; a busy post may conclude it is far more efficient to work with a new application than to wait for the DS-160 to transfer. 

  Q: Does preparation of a second DS-160 to correct a mistake in an initially prepared and submitted form have any adverse effect on a nonimmigrant visa application? 

  A: No. An applicant would not be adversely affected if he or she chooses to submit a second DS-160 and schedules another interview based on that barcode. 

  Q: If an applicant schedules a nonimmigrant visa application appointment using the bar code information from a submitted DS-160 and then realizes there was a mistake in the data entered, can the applicant complete another DS-160 that has new bar code data without having to reschedule a visa interview appointment? 

  A: It is not recommended. Attending an interview with a different bar code than the one scheduled with may cause processing delays necessitating that the applicant reschedule. 

  Q: Are there any mistakes on a DS-160 that can be corrected at the time of the interview (e.g., nonmaterial information), or should all mistakes be corrected on a new DS-160 application? 

  A: The DS-160 applications are locked upon submission. Consular staff may enter remarks, but generally the original data remains as submitted. Depending on the nature of the correction (e.g., wrong visa class chosen), an application may be unlocked for the applicant to make corrections and resubmit. However, this may necessitate rescheduling the interview and returning to the embassy at a later date. 

  Q: If an applicant completes and submits a DS-160 and then obtains a new passport, is it necessary to submit a new DS-160, or can the consulate amend the passport information at the interview? Does using a new passport with a new passport number that is not the one used to schedule the interview present any problem entering the consular post? 

  A: Generally, no. It is not necessary for the applicant to submit a new DS-160. The DS-160 can be unlocked by the consular officer for purposes of making certain changes, but the passport number in the CEAC (Consular Electronic Application Center) cannot be changed. The applicant should be able to enter the consular section, but should be sure to bring both the new and old passports to the interview. The consular staff can enter remarks concerning the new passport information on the DS-160, and consular officers should be able to process the case using the new passport. Finally, the Visa Office advises that applicants use Internet Explorer 11 (or higher) or Chrome browsers. Safari is not compatible with the application. To avoid loss of data, it is recommended that applicants save the application at the end of each page. Since incomplete applications are stored by the system for 30 days only, it is also advisable that applicants save their applications to their own servers.


USCIS Issues Policy Guidance on Post-Sentencing Changes

In immigration law, certain criminal acts have immigration consequences, rendering an applicant inadmissible, deportable, or ineligible for the immigration benefit being sought. USCIS issued policy guidance — and updated its USCIS Policy Manual — regarding how post-sentencing changes to criminal sentences affect convictions for immigration purposes. An immigrant convicted of an aggravated felony is ineligible for most forms of relief or protection from removal. Notably, the INA defines an "aggravated felony" to include a "crime of violence" for which "the term of imprisonment [is] at least one year." On October 25, 2019, the Attorney General held that a "term of imprisonment or a sentence" refers to the alien's original criminal sentence without regard to post-sentencing alterations for reasons other than a procedural or substantive defect. Dating back to at least 1982, the Board of Immigration Appeals (BIA) has held that a sentence modification shall be given full effect, regardless of the rationale for the modification. In other words, an individual could move to modify an imposed sentence solely to avoid immigration consequences, and that modification would be given full faith and credit by immigration courts. Not so anymore. Now, immigration courts will no longer give effect to sentence modifications made solely to avoid immigration consequences. Instead, a sentence modification must be based at least in part on a ground of procedural or substantive invalidity only for immigration authorities to give it full faith and credit.


Impact of DUI Convictions on Good Moral Character Determinations

Certain immigration benefits require an applicant to demonstrate that he or she has good moral character (GMC) in order to demonstrate eligibility for the benefit. The good moral character standard is cited throughout the INA, and is a prerequisite to eligibility for numerous forms of immigration relief. Recently, the Attorney General held that evidence of two or more DUI convictions during a relevant statutory period establishes a rebuttable presumption of a lack of GMC. An immigrant's efforts to reform or rehabilitate him- or herself after multiple DUI convictions are considered commendable, but do not demonstrate good moral character during the period that includes the convictions. Absent substantial relevant and credible contrary evidence, two or more DUI convictions require an immigration adjudicator to deny the relief sought.


Naturalization: Conditional Bar to Good Moral Character for Unlawful Acts

USCIS is also updating its policy guidance in its Policy Manual on "unlawful acts" during the applicable statutory period that reflect adversely on moral character and may prevent an applicant from meeting the good moral character (GMC) requirement for naturalization. An applicant who has committed, was convicted of, or was imprisoned for an "unlawful act" during the applicable statutory period (three or five years, depending on the case) may be found to lack GMC if the act adversely reflects on his or her moral character, unless the applicant can demonstrate extenuating circumstances. An act is unlawful if it violates a criminal or civil law of the jurisdiction where it was committed. The regulation addressing "unlawful acts" does not require the applicant to have been charged with or convicted of the offense. Previously, the Policy Manual did not include extensive information on "unlawful acts." This update provides additional examples of "unlawful acts," emphasizes that USCIS officers determine whether an "unlawful act" is a conditional bar on a case-by-case basis, and provides guidance on that case-by-case analysis. The update further identifies unlawful acts that may affect GMC based on judicial precedent.


Medical Screenings Discourage Asylum Seekers

Many asylum seekers who are waiting to be heard in U.S. immigration court are currently living in tent camps on the Mexico side of the U.S. border. After waiting several months in destitute conditions, they arrive to immigration court only to find that they are being turned away from attending their hearings if CBP believes any member of the family looks sick. This leads to a postponement of hearings which is a denial of due process. Medical screenings have become the latest tactic used by the CBP to discourage asylum seekers from pursuing their claims. Even worse, many who are supposedly screened before their hearings and told they have a certain ailment, are later found to have been diagnosed erroneously, forcing them to miss their court hearing.



Arrests and Deportations Under Trump Generally Lower Than Under Obama

According to a recent article in the Washington Post that analyzed ICE's annual report for FY2019, ICE deported approximately 12,000 family members and unaccompanied minors of the 540,000 who crossed the border, far fewer than the millions President Trump pledged to arrest and deport. While the number of families deported increased and overall ICE deported more than 267,000 people in FY2019 — representing an uptick of 4 percent from FY2018 — the Trump Administration has deported a significantly lower number of people than did the Obama Administration. Under Obama, some 400,000 people were deported annually midway through his Administration. Arrests inside the United States, which target convicted criminals, also hit their lowest point since Trump took office.


Holiday Travel: Review Your Documents Now

Now is a good time for foreign nationals who will be departing the United States for travel abroad over the holidays to review their travel documents to ensure that their reentry into the U.S. is as seamless as possible. Depending on an individual's current status and whether he or she is "in process" for another status, different documentation may be required upon return to the United States. For example, certain foreign nationals who are currently in status but whose visa has expired will be required to apply for a new visa at a U.S. consulate in their home country. (Wait times for visa appointments at U.S. consulates vary and tend to swell during the holiday season, as do processing times.) For other foreign nationals, an advance parole travel document may be required to preserve a pending green card application. And, yet for others, changed circumstances (such as change in work, change in relationship, arrests, and criminal matters) may have immigration consequences. Travelers on the Visa Waiver Program should ensure that their ESTA (Electronic System for Travel Authorization) authorization is still valid; if reauthorization is required and the individual is denied and a visa becomes required for reentry, sufficient time will be necessary for that individual to make an application. Foreign nationals planning to travel outside the United States within the next couple of weeks and who have questions about their documents are encouraged to contact our office. On a related note, international travelers using ESTA for travel to the United States are reminded to apply as soon as possible but not less than 72 hours before their international flight is scheduled to depart. Travelers who participate in the Visa Waiver Program (VWP) traveling to the U.S. are strongly encouraged to apply for ESTA authorization at the time of booking their trip.




Polish Nationals Eligible for ESTA: In a recent rule effective 11/11/2019, DHS designated Poland as a country eligible to participate in the Visa Waiver Program. French E-1 and E-2 Visa Validity Period Now 25 Months: Effective 11/12/19, the maximum validity of E-1 and E-2 visas for French nationals, including derivatives, is now 25 months.