USCIS Announces Temporary Suspension of Premium Processing for All H-1B Petitions Filed On or After April 3, 2017

Today the United States Citizenship and Immigration Service (USCIS) issued a statement confirming that the agency will be temporarily suspending premium processing service for all H-1B nonimmigrant visa petitions filed on or after April 3, 2017 and has indicated that the temporary suspension may last up to six (6) months.  The agency confirmed that this will apply to all H-1B petitions, including those filed under both the regular and master's cap and those that are cap-exempt.

USCIS indicated that while H-1B premium processing is suspended it will not accept Forms I-907, Request for Premium Processing Service filed with an H-1B petition. USCIS also confirmed that they will reject the entire H-1B petition for cases where the premium processing fee is combined in one check with the standard Form I-129 filing fees.  Therefore, individuals submitting H-1B petitions should not file any cases with a request for premium processing and should issue separate checks for each filing fee in order to avoid any issues with rejection of the petition.

USCIS has indicated that it has temporarily suspended premium processing service in order to reduce overall H-1B processing times, including long-pending cases and unadjudicated H-1B extension requests that are approaching 240 days since filing (after which the beneficiary would lose their automatic extension of employment authorization until the new petition is approved).  The agency confirmed that it will notify the public before resuming premium processing for H-1B petitions.

D&S is continuing to monitor this developing situation and will provide updates as they become available.

Department of State March 2017 Visa Bulletin Summary

The Department of State has released the March 2017 Visa Bulletin.  D&S provides a Monthly Summary of the family and employment-based priority dates.  For the employment-based preference categories, Application Filing dates remain unchanged.

EB-3 India remains unchanged at March 22, 2005 and EB-2 India progressed 1.5 months to June 1, 2008.  EB-2 China, progressed 1 month to December 15, 2012 and EB-3 China progressed 5.5 months to March 15, 2014.  

Final Action dates for EB-3 Worldwide and EB-3 Mexico progressed 2 months to December 1, 2016 and EB-3 Philippines progressed just under 5 months to March 15, 2012.

EB-5 China Final Action dates progressed 2 weeks to May 1, 2014

As of today, February 14, 2017, USCIS has not advised whether, in March 2017, it will accept adjustment of status applications for family and employment-based petitions based on final action dates or application filing dates.

Department of State February 2017 Visa Bulletin Summary

The Department of State has released the February 2017 Visa Bulletin.  D&S provides a Monthly Summary of the family and employment-based priority dates.  For the employment-based preference categories, Application Filing dates remain unchanged.

EB-3 India advanced 1 week to March 22, 2005 and EB-2 India remains unchanged at April 15, 2008.  EB-2 China, progressed 1 month to November 15, 2012 and EB-3 China progressed 3 weeks to October 1, 2013.  

Final Action dates for EB-3 Worldwide and EB-3 Mexico progressed 2 months to October 1, 2016 and EB-3 Philippines progressed just under 3 months to October 15, 2011.

EB-5 China Final Action dates progressed 1 week to April 15, 2014

As of today, January 12, 2017, USCIS has not advised whether, in February 2017, it will accept adjustment of status applications for family and employment-based petitions based on final action dates or application filing dates.

Department of State January 2017 Visa Bulletin Summary

The Department of State has released the January 2017 Visa Bulletin.  D&S provides a Monthly Summary of the employment-based priority dates.  For the employment-based preference categories, Application Filing dates remained unchanged.

EB-3 India remained unchanged at March 15, 2005 and EB-2 India saw moderate forward movement of 2.5 months to April 15, 2008.  EB-2 China, progressed 3 weeks to October 15, 2012 and EB-3 China progressed 9 weeks to September 8, 2013.  

Final Action dates for EB-3 Worldwide and EB-3 Mexico progressed 1 month to August 1, 2016 and EB-3 Philippines progressed just under 2 months to July 22, 2011.

EB-5 China Final Action dates progressed 2 weeks to April 8, 2014

As of today, December 13, 2016, USCIS has not advised whether, in January 2017, it will accept adjustment of status applications for family and employment-based petitions based on final action dates or application filing dates.

Department of State December 2016 Visa Bulletin Summary

The Department of State has released the December 2016 Visa Bulletin.  D&S provides a Monthly Summary of the employment-based priority dates.  For the employment-based preference categories, Application Filing dates remained unchanged.

For EB-3 India, there was modest forward movement of one week to March 15, 2005. EB-2 India there was forward movement of almost 3 months to February 1, 2008.  EB-2 China, progressed just over 2 months to September 22, 2012 and EB-3 China progressed 2.5 months to July 1, 2013.  

Final Action dates for EB-3 Worldwide and EB-3 Mexico remain unchanged and EB-3 Philippines progressed 4 months to June 1, 2011.

EB-5 China Final Action dates progressed 2 weeks to March 22, 2014

As of today, November 14, 2016, USCIS has not advised whether, in December 2016, it will accept adjustment of status applications for family and employment-based petitions based on final action dates or application filing dates.

"I-140 EAD Rule" Submitted to OMB For Final Review

This week the Department of Homeland Security (DHS) submitted The Proposed Rule for Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting Highly-Skilled H-1B Nonimmigrant Workers, (frequently referred to as the "I-140-EAD Rule") to the Office of Management and Budget (OMB) for final review prior to publication.

The Proposed Rule was published at the end of 2015 and the public comment period lasted for the first 2 months of 2016. Since that time DHS been reviewing the public comments that were submitted in response to the proposed rule.  The OMB review process is expected to take 30-60 days and, upon completion, a final rule will be published and would be expected to take effect after 60 days from publication. At present DHS has not indicated whether any significant changes have been made to the rule in response to public comments to the Proposed Rule.

D&S will continue to monitor developments and provide updates as they become available.

DEPARTMENT OF HOMELAND SECURITY PUBLISHES FINAL RULE WITH REVISED FILING FEE SCHEDULE

Today, Monday October 24, 2016, the Department of Homeland Security (DHS) published a Final Rule in the Federal Register with the new fee schedule for immigration and naturalization benefit requests processed by the United States Citizenship and Immigration Service (USCIS). DHS increased fees by a weighted average of 21 percent.  The Rule will become effective 60 days from today on Friday, December 23, 2016.  D&S has made a Fee Schedule Comparison Chart for the most common types of business immigration filings.

Department of State November 2016 Visa Bulletin Summary

The Department of State released the November 2016 Visa Bulletin this week.  D&S provides a Monthly Summary of the family and employment-based priority dates.  For the employment-based preference categories, Application Filing dates remained unchanged.

For EB-3 India, there was modest forward movement of one week to March 8, 2005. EB-2 India there was forward movement of almost 10 months to November 1, 2007.  EB-2 China, progressed 5 months to July 15, 2012 and EB-3 China progressed 3 months to April 15, 2013.  

Final Action dates for EB-3 Worldwide and EB-3 Mexico progressed 1 month to July 1, 2016 and EB-3 Philippines progressed 4 months to April 1, 2011.

EB-5 China Final Action dates progressed 2 weeks to March 8, 2014

As of today, October 13, 2016, USCIS has not advised whether, in November 2016, it will accept adjustment of status applications for family and employment-based petitions based on final action dates or application filing dates.

Reminders to Students and Employers as H-1B Cap Effective Date Approaches on October 1

As October 1st is fast-approaching, individuals with H-1B petitions that were selected in this year’s H-1B cap and employers of H-1B visa holders should remain aware of some important facts:

CAP-GAP EXTENSIONS END ON SEPTEMBER 30th - For those whose H-1B is still pending and who are relying on the automatic cap-gap for F-1 students, keep in mind that that your cap-gap employment authorization ends on September 30th, even if the H-1B remains pending after this date. Therefore, employees whose H-1B visas are not approved by October 1st will have to stop working and be removed from payroll. Because of this, we recommend considering upgrading to premium processing as soon as possible in order to avoid this consequence or, at the very least, minimize the amount of time you or your employee will be unable to work.

VALID H-1B VISA STAMP REQUIRED FOR REENTRY TO U.S. - While an H-1B employee is not required to have a valid H-1B visa in his or her passport for purposes of employment, they must have a valid H-1B visa stamp for entry or reentry to the U.S. Therefore, following approval of the H-1B petition, an H-1B employee should be mindful of the fact that they will be required to apply for an H-1B visa stamp prior to returning to the U.S. the next time they travel internationally, absent certain limited exceptions, including trips of under 30 days to Canada, Mexico, or adjacent islands (note individuals should vet any such travel with immigration counsel prior to making travel plans to ensure an exception applies in their case).  

I-9 REVERIFICATION MAY BE REQUIRED - Employers should also keep in mind that for current employees with an approved H-1B “Change of Status” petition, whose current status will expire on October 1, including all F-1 students working pursuant to cap-gap employment authorization, the individual’s employment authorization will need to re-verified on Form I-9.

ALWAYS ADVISE IMMIGRATION ATTORNEY OF ANY CHANGES TO H-1B EMPLOYMENT - Finally, employers and employees should be aware that certain changes to the terms of an H-1B visa holder’s employment could impact their continued eligibility for H-1B status and/or could necessitate the filing of an H-1B amendment.  Employers are therefore encouraged to speak to immigration counsel prior to making any changes to the terms of an H-1B visa holder’s employment to ensure compliance with these requirements.

Department of State October 2016 Visa Bulletin Summary

The Department of State recently released the October 2016 Visa Bulletin, which marks the beginning of the new immigration fiscal year.  D&S provides a Monthly Summary of the family and employment-based priority dates.  Application Filing Dates for EB-2 and EB-3 Worldwide are now current.  Additionally, Application Filing Dates for China retrogressed in both the EB-2 and EB-3 categories with EB-2 China retrogressing 3 months to March 1, 2013 and EB-3 China retrogressing 1 year to May 1, 2014.  There was modest retrogression of just over 8 weeks for EB-2 India, which is now at April 22, 2009.  EB-3 India remains unchanged at July 1, 2005.  EB-5 China has retrogressed almost 1 year to June 15, 2014.

With respect to Final Action Dates, EB-2 Worldwide, Mexico, and Philippines have again become current. There was also forward movement for EB-2 India which progressed almost 2 years to January 15, 2007. EB-3 India retrogressed 2 weeks to February 15, 2005.  There was significant movement in both Chinese employment-based categories with EB-2 China progressing over 2 years to February 15, 2012, and EB-3 China progressing over 3 years years to January 22, 2013. Additionally, EB-1 China has again become current.

Final Action dates for EB-3 Worldwide progressed 2 weeks to June 1, 2016, EB-3 Mexico progressed 1 month to June 1, 2016, and EB-3 Philippines progressed 5 months to December 10, 2010.

EB-5 China Final Action Date progressed 1 week to February 22, 2014.

As of today, September 12, 2016, USCIS has not advised whether, in October 2016, it will accept adjustment of status applications for family and employment-based petitions based on final action dates or application filing dates.

Department of State September 2016 Visa Bulletin Summary

The Department of State released the September 2016 Visa Bulletin this week.  D&S provides a Monthly Summary of the family and employment-based priority dates.  For the second and third employment-based preference categories, Application Filing dates remained unchanged.

There was forward movement of just over 3 months for EB-2 and EB-3 India.  EB-2 and EB-3 China, remain unchanged with priority dates for both categories remaining at January 1, 2010.  Additionally, EB-1 China remains at January 1, 2010 after retrogressing last month.

EB-2 Worldwide remains backlogged to February 1, 2014, but is expected to become current again next month with the start of the new fiscal year.

Final Action dates for EB-3 Worldwide remain unchanged, EB-3 Mexico progressed 6 weeks to May 1, 2016, and EB-3 Philippines progressed 14 months to July 1, 2010.

EB-5 China Final Action dates continue to remains static at February 15, 2014.

Today, August 10, 2016, USCIS advised that in September 2016, it will accept adjustment of status applications for family and employment-based petitions based on final action dates. 

D&S Reminds STEM OPT Students that Window to File 7-Month Extension Closes on Monday, August 8, 2016

This past March, the Department of Homeland Security (DHS) released a new STEM OPT Rule providing for, among other things, an extended 24-month STEM OPT period, which is 7 months longer than the 17-month period available under the old rule.  

D&S reminds eligible students with existing 17-month STEM OPT Employment Authorization Documents (EADs) that the transitional period, during which such students can request an additional 7 months for STEM OPT, closes this coming Monday, August 8, 2016.

The transitional measure, which is available from May 10, 2016, through August 8, 2016, provides certain students with existing STEM OPT EADs a limited window in which to apply for an additional 7 months of OPT, effectively enabling them to benefit from a 24-month period of STEM OPT. To qualify for the additional 7-month extension, the student must satisfy the following requirements. 

1. Students must have at least 150 calendar days remaining on their current STEM OPT EAD at the time they file their new I-765 Application for Employment Authorization requesting the additional 7 months of STEM OPT
2. Students must meet the general requirements for 24-month STEM OPT including submission of a Form I-983 Training Plan for STEM OPT Students to their DSO prior to receiving a new certified I-20 to become eligible for the 24-month STEM OPT extension
3. Students must properly file their Form I-765 with applicable fees and supporting documents on or before August 8, 2016 and within 60 days of the date the DSO enters the recommendation for the 24-month STEM OPT extension into SEVIS

If the extension is approved, the United States Citizenship and Immigration Service (USCIS) will issue a new EAD with a validity period that starts the day following the expiration of the prior 17-month STEM OPT EAD.