2018 Year In Immigration – Summary of Key Policy Changes
This year brought many key immigration policy changes in the employment-based immigration arena and 2019 is expected to be no different.
H-1B Petitions: Interpretation of “Specialty Occupation”. A more narrow interpretation of the positions that qualify as a “Specialty Occupation” continues to result in the issuance of Requests for Evidence, Notices of Intent to Deny and Denials for certain occupations. Immigration regulations define a “specialty occupation” as one requiring the theoretical and practical application of a body of highly specialized knowledge and the attainment of at least a Bachelor’s Degree in a specific specialty or its equivalent. The more narrow definition has resulted in higher scrutiny of H-1B petitions for occupations where USCIS determines that a degree in a specific specialty is not required. Such occupations include those classified under the Specific Occupational Classification (SOC) codes for Quality Assurance Engineers and Testers, Computer Systems Analysts, and Business Systems Analysts.
Suspension of Premium Processing of most H-1B petitions and increase in filing fee. In April, USCIS temporarily suspended premium processing of cap-subject H-1B petitions. The suspension was slated to last until September 10, 2018, but was extended until at least February 19, 2019. The suspension was also expanded to include H-1B petitions requesting a change of employer, amendments, and extensions requesting a change in previously approved employment. Premium processing has remained available for extensions with no changes from the previous filing and H-1B petitions filed by cap-exempt employers, such as universities, non-profit research institutions, or governmental research organizations. The suspension was intended to allow USCIS to reduce overall H-1B processing times. Notwithstanding the suspension, H-1B processing times continue to be lengthy, particularly for cap-subject petitions, many of which remain pending well beyond October 1st, which is the date cap-subject petitions may take effect. Additionally, USCIS raised the premium processing filing fee from $1225 to $1410. The fee reflects the percentage change in inflation since last adjusted in 2010.
Change in Policy regarding Requests for Evidence (RFE) and Notices of Intent to Deny (NOID). Effective September 11, 2018, a new USCIS policy with respect to the issuance of RFEs and NOIDs took effect and is applicable to applications, petitions, and request filed after the effective date. Under the new policy, greater discretion is given to USCIS adjudicators to deny applications or petitions without first issuing an RFE or NOID if the adjudicator determines initial evidence was not submitted or the evidence of record fails to establish eligibility. This policy has resulted in more stringent standards for immigration filings.
USCIS implements new policy on the issuance of Notices to Appear (NTA). An NTA is a document that instructs an individual to appear before an immigration judge. This is the first step in starting removal proceedings. USCIS may issue NTAs based on denials of certain applications for immigration benefits for applicants, beneficiaries, or self-petitioners who are no longer in a period of authorized stay and who do not depart the U.S. The implementation of the policy has been incremental and does not currently apply to any employment-based petitions. However, it does apply to denials of Form I-539, which is the form used by dependents of employment-based applicants who are seeking a change or extension of status.
New Policy on calculation of unlawful presence of those in Student (F nonimmigrant), Exchange Visitor (J nonimmigrant) or Vocation Student (M nonimmigrant) status and their dependents while in the United States. Unlawful presence is defined as presence in the U.S. after the expiration of the authorized period of stay. The penalty for unlawful presence is significant. Accrual of more than 180 days of unlawful presence during a single stay and subsequent departure from the U.S. is subject to a 3-year bar to admission. Unlawful presence of one year or longer is subject to a 10-year bar to admission. Under the former policy, individuals who entered the U.S. for Duration of Status (D/S) did not automatically begin to accrue unlawful presence if they overstayed or violated their nonimmigrant status. Instead, unlawful presence was triggered only upon a formal finding of a status violation. The new policy provides that unlawful presence will begin to accrue once an F, J, or M nonimmigrant overstays or violates status. For additional information on this policy, see our prior update USCIS Updates Guidance on Unlawful Presence Accrual for F, M and J Nonimmigrants
Medical Examinations for Adjustment of Status Applications now valid for 2 years. USCIS officers use Form I-693, Report of Medical Examination and Vaccination Record, to determine whether an applicant for an immigration benefit in the U.S. is inadmissible under the health-related grounds of inadmissibility. USCIS has extended the validity period of medical examination results completed on Form I-693 from one to two years to both enhance operational efficiencies and reduce the number of requests for an updated Form I-693. However, the form must be signed no more than 60 days before the applicant files the underlying application for which Form I-693 is required.
Applications to renew advance parole documents will no longer be denied if the applicant travels with a valid advance parole document valid for the entire duration of time abroad. Earlier this year, USCIS changed long standing policy and began denying applications for advance parole travel documents if the applicant departed while the application was pending, even if they had other valid travel documentation, such as a previously approved and valid advance parole document. In a change to the Special Instructions on its website, USCIS is now indicating that advance parole applications will not be denied if the applicant travels using a prior, valid advance parole document.
What Changes May Come in 2019?
Work permits for H-4 spouses of H-1B workers. A rule to end employment authorization for H-4 spouses is expected to be proposed in 2019. Details on timing and how the rule will be implemented has not been announced, however it is hoped that existing work permits will remain valid through their expiration date and pending applications will be granted.
H-1B Cap Registration. USCIS recently proposed a rule that would change the way H-1B “cap” petitions are filed and selected. Currently, a fully completed petition must be filed for consideration in the random selection process that takes place in April of each year. USCIS is proposing to change the process so that employers would register electronically for consideration in the lottery and only those that have been registered and selected in lottery would submit a fully prepared petition. Details have not been finalized and the more likely scenario is that USCIS will wait until 2020 to implement the new system given the short timeframe from the time the rule will be finalized and the opening of the filing window. What is clear is that USCIS will change the way H-1Bs will be selected to provide an advantage to U.S. Advanced Degree professionals furthering the Administration’s agenda of ensuring that H-1Bs are awarded to the highest-paid and most-skilled beneficiaries.
Proposed Change to Public Charge Ground of Inadmissibility. The Department of Homeland Security (DHS) has proposed a rule that would change the standard used when determining whether an applicant for an immigration benefit is likely at any time in the future to become a public charge. The proposed rule would apply to individuals seeking admission to the U.S. from abroad on immigrant or nonimmigrants visas, individuals seeking to adjust their status to that of lawful permanent residents from within the U.S., and individuals within the U.S who hold a temporary visa and seek to either extend their stay in the same nonimmigrant classification or to change their status to a different nonimmigrant classification. Public benefits that could amount to inadmissibility include cash assistance for income maintenance, Medicaid (with limited exceptions for Medicaid benefits paid for an “emergency medical condition,” and for certain disability services related to education), Medicare Part D Low Income Subsidy, the Supplemental Nutrition Assistance Program (SNAP, or food stamps), any benefit provided for institutionalization for long-term care at government expense, Section 8 Housing Choice Voucher Program, Section 8 Project-Based Rental Assistance, and Public Housing, even if such benefits are obtained on behalf of U.S. citizen children of the foreign national.
Should you have any questions on the new immigration policies, please contact your LAC attorney. We are committed to continuing to provide employers and their employees strategies for navigating and weathering the changing immigration landscape.