| Proposed Rule for H-1B Registration On December 3, 2018, USCIS announced possible changes to the H-1B process for the upcoming H-1B lottery. The proposed rule would impose a mandatory registration system for all employers, who would be required to electronically register with USCIS during a pre-determined period of time. It is unclear at this point if USCIS has enough time to implement such drastic changes to the H-1B selection process. We will continue to monitor the situation and keep you updated. In the meantime, we are proceeding as usual with cap H-1B petition. If you have additional questions please do not hesitate to contact us. USCIS is proposing a mandatory Internet-based electronic registration process for petitioners seeking to file cap-subject H-1B petitions. Details of the proposed rule are as follows: Registration basics The registration period would begin at least fourteen calendar days before the first day of filing in each fiscal year and would last for a minimum period of fourteen calendar days. USCIS would give the public at least 30 days advance notice of the opening of the initial registration period via the USCIS website (www.uscis.gov) and separately announce the final registration date on the website. The electronic registration process would start before April 1, in advance of the period during which H-1B petitions can be filed for a new fiscal year. Is two weeks enough time to submit registrations? DHS invites the public to comment on whether the proposed duration and timing of the registration period would provide enough time for prospective petitioners to submit their registrations. Registration content Petitioners would be asked to provide basic information regarding the petitioner and beneficiary when registering. This information may include, but is not limited to: (1) the employer’s name, employer identification number (EIN), and employer’s mailing address; (2) the employer’s authorized representative’s name, job title, and contact information (telephone number and email address); (3) the beneficiary’s full name, date of birth, country of birth, country of citizenship, gender, and passport number; (4) if the beneficiary has obtained a master’s or higher degree from a U.S. institution of higher education; (5) the employer’s attorney or accredited representative, if applicable (a Form G-28 should be also submitted electronically if this is applicable); and (6) any additional basic information requested by the registration system or USCIS. To address potential issues of “flooding the system” with non-meritorious registrations, DHS is prohibiting petitioners from submitting more than one registration for the same beneficiary during the same fiscal year, and is requiring petitioners to make an attestation in the system indicating their intent to file an H-1B petition for the beneficiary in the position for which the registration is filed. This attestation is intended to ensure that each registration is connected with a bona fide job offer and, to the extent selected, will result in the filing of an H1B petition. Lottery Assuming that there are more registrations than available visa numbers, USCIS will conduct a lottery. Separately from the registration process, USCIS proposes to reverse the order of counting the petitions toward the H-1B allocations such that it would first count all cap-subject H-1B petitions, including those that may be eligible for the advanced degree exemption, towards the regular cap until the projected number of petitions needed to meet the regular cap is reached. Once the regular cap projected number is reached, USCIS would then count those petitions eligible for the advanced degree exemption and not selected under the regular cap toward the projected number needed to reach the advanced degree exemption allocation. DHS estimates USCIS could accept up to 5,340 (or 16 percent) more H-1B cap-subject petitions annually for beneficiaries with a master’s or higher degree from a U.S. institution of higher education. There would be a corresponding decrease in the number of bachelor’s degree or non-U.S. advanced degree petitions accepted. What happens if your registration is selected? USCIS would notify all petitioners with selected registrations that the petitioner is eligible to file an H-1B cap-subject petition on behalf of the named beneficiary within the designated filing period. If the petitioner’s registration was selected, the notice would indicate a filing location and the designated filing period during which the H-1B petition must be filed, and provide instructions on how to file. DHS proposes that petitioners would have a period of at least 60 days to properly file a completed H-1B cap-subject petition for the named beneficiary. USCIS would notify all petitioners with selected registrations that the petitioner is eligible to file an H-1B cap-subject petition on behalf of the named beneficiary within the designated filing period. Allowing USCIS to specify the filing period in the selection notice would give USCIS the flexibility to stagger filings, as described below, and provide filing periods of longer than 60 days if necessary to accommodate processing backlogs or other operational needs. A selected registrant who does not file a petition on behalf of the named beneficiary within the timeframe stated on the selection notice would forego eligibility to file and any consideration for an available H-1B cap or advanced degree exemption number based on that selection notice. DHS anticipates that there would be several filing periods for each fiscal year. DHS may suspend the registration process for many reasons including technical difficulties in implementing or executing the process. If the registration process is suspended, USCIS will still reverse the order of counting petitions toward the cap allocation. Proposed Rule for Public Charge Inadmissibility Ground A Notice of Proposed Rulemaking concerning the public charge ground of inadmissibility under the Immigration and Nationality Act (INA) was published in the Federal Register for a 60-day comment period on October 10, 2018. Comments on the proposed regulation must have been submitted by Monday, December 10, 2018. The proposed regulation has the potential to affect thousands of children of immigrants in the U.S., as parents working low-wage jobs and relying on public assistance may be forced to take their children out of public programs such as Obamacare, food stamps and other benefits in order to keep their families together here in the U.S. In other words, the enactment of this regulation would force millions of immigrants already legally in the U.S. who rely on public assistance to have to choose between accepting much needed financial help and a green card. This puts families in a difficult position, forcing them to choose between obtaining legal permanent resident status here in the U.S. and receiving the public benefits that will keep their children healthy, safe, sheltered, and fed. The proposed rule also discriminates against immigrants with certain common health conditions, stating that an “alien is at high risk of becoming a public charge if he or she has a medical condition and is unable to show evidence of unsubsidized health insurance.” Thus, a low-income immigrant who has cancer, for example, must prove that she is insured, but cannot use the benefits available to her to enroll in health insurance programs. Perhaps most importantly, the regulation would seriously undermine the American Dream. It closes our borders to the type of hardworking, average people that have made America what it is today in favor of those who are wealthier by implementing what is essentially a wealth test, taking into account nothing but the projected economic forecast for particular individuals. This test does nothing to measure individuals’ potentials, but instead attempts to prevent less affluent applicants from being able achieve their own potentials in a system where you must be able to pay to participate. It seems clear that the proposed rule is aimed at denying basic public assistance, such as food, health care and housing, to immigrants with legal status in the U.S. who not only contribute to the American economy as a whole, but also work, go to school, serve our country, contribute to their communities, and pay federal and state taxes. Ditrani Law has submitted comments to USCIS regarding the negative and harsh consequences if the proposed rule is implemented. Please do not hesitate to contact us with any questions. Proposed Continuing Resolution Funds VAWA until December 21, 2018 The Violence Against Women’s Act is a landmark piece of legislation that improves the criminal justice and community-based responses to domestic violence, dating violence, sexual assault and stalking in the United States. From an immigration prospective, VAWA allows survivors of domestic violence to self petition for a green card under certain circumstances. See here https://www.uscis.gov/green-card/green-card-vawa-self-petitioner for more information. Congress passed a short-term spending bill last week that extended the Violence Against Women Act (VAWA), which was due to end Friday, December 7th. It has now been extended for two weeks, until Friday, December 21, 2018. Again, we will continue to monitor the situation and keep you updated. Visa Bulletin The Visa Bulletin includes “Final Action Dates” and “Dates for Filing applications for the family-and employment-based categories. The DOS Visa Bulletin for December 2018 is available here. Happy Holidays Ditrani Law wishes you and your families a very happy holiday and a very merry new year. |
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