UPDATE:  In a landmark decision on February 9, 2017, the Ninth Circuit Court of Appeals halted the Executive Order travel ban imposed on persons from predominantly-Muslim countries.  The Court upheld the temporary restraining order from Judge James Robart’s February 3, 2017, ruling in the lawsuit Washington v. Trump.  As a result, the travel ban is not in force. 

However, some heightened scrutiny still exists in the interest of security.  Persons with concerns about departing from or returning to the U.S. still may want to contact an immigration lawyer prior to travel.  However, citizens and nationals from Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen, or with Muslim backgrounds, no longer should be subjected to unduly excessive questioning during visa processing or upon entry to the United States.   

Following is the history of the Executive Order and continuing implications. 

On Friday, January 27, 2017, President Trump issued Executive Orders barring admission into the United States from seven predominantly Muslim countries, suspending all refugee admissions, and barring entry by Syrian refugees. Though no countries are listed on the Order, the intent was the ban on entry into the U.S. by nationals of Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen by any persons “from” those countries with nonimmigrant or immigrant visas or status or as refugees.

Multiple lawsuits challenged the Order.  On January 28, 2017 federal courts in several districts issued stays limiting the Order, but the Department of Homeland Security through Customs & Border Protection (CBP) is not fully complying with the stays at all airports and ports of entry.

However, on January 29, 2017, Homeland Security issued a statement, indicating that allowing lawful permanent residents to return to the U.S. is in the national interest, so long as there is no serious derogatory information, as determined on a case-by-case basis.

Overall, CBP and visa officers applied an extremely heightened level of discretion for foreign citizens from Muslim countries (beyond the seven listed), but persons who are allowed to board flights by an large have been allowed to enter the U.S.

Here is a summary of the impact:

Impact on U.S. Citizens

  • The Order does not specifically apply to U.S. born citizens or naturalized US citizens.
  • However, dual U.S. citizens from the 7 countries reported that CBP notified them that their Global Entry trusted traveler authorization is being revoked.

Departing the United States

  • To minimize the impact of the Order, it is advisable to avoid unnecessary travel outside the United States.
  • On January 31, 2017, the Department of State began the provisionally revoking valid visas previously issued to any affected nationals from the 7 countries.  A provisional revocation of a visa does not require the person to depart the U.S., and anyone who receives notification should contact an immigration attorney to discuss implications.  UPDATE: The State Department has started to reinstate the revoked visas.

Returning to the U.S. by Air

  • For persons currently outside the U.S., anticipate enhanced questioning on return, related to activities inside and outside the U.S. and related to family and friends.
  • In some countries, airlines were asking travelers from the 7 countries to sign agreements that if Homeland Security refused to allow them to enter the U.S., the person would agree to pay the return airfare (under existing agreements, the airlines – not the U.S. government or individuals – are liable to cover the cost).

Returning to the U.S. at a Land Border Crossing

  • Entry at land border crossings almost involves more questioning than flying into the U.S. The reason is that some screening occurs through the Advanced Passenger Information System (APIS) before boarding a flight, but the traveler must wait for the immigration officer at the land border crossing to conduct the screening.

Canadians

  • National Security Advisor Flynn advised that dual nationals of Canada are not prohibited from entering the United States and usually should be allowed to enter.

Green card holders returning to the U.S.

  • Green card holders from countries other than the 7 listed report little difference in the admission process from before the Order.
  • Green card holders from the 7 countries who are dual citizens of other countries (such as Canada and the UK) may be subjected to minimal additional screening.
  • Green card holders from the 7 countries are being subjected to additional screening, which may involve a few additional questions by the immigration officer in primary inspection at the entry booth, or the person may be sent to secondary inspection for more extensive questioning ranging from a few minutes to several hours.
  • Some immigration officers and airline representatives have asked green card holders to sign a form (I-407) to abandon permanent resident status and be allowed to enter the U.S. as a visitor.  Permanent residents should not sign a form or relinquish the green card without speaking to a lawyer.
  • UPDATE:  Persons from the 7 countries generally no longer are singled out.

Temporary, nonimmigrant visa travelers

  • Temporary visas holders (such as with H-1B, O-1, L-1, F-1 students, business visitors, tourists, and Canadians and Mexicans with TN status) from the 7 countries may be subjected to enhanced primary or secondary screening.  UPDATE:  Persons from the 7 countries generally no longer are singled out.
  • Those returning to work generally have less questioning that those entering for the first time.

Visa processing overseas

  • Some U.S. embassies and consulates abroad had allowed returning visa applicants to forego an interview under visa interview-waiver programs, i.e., the drop-box for visa renewals. This option no longer exists. Now, all visa applicants must attend an interview.  UPDATE:  Drop-box visa processing has resumed.
  • Persons from other countries attending visa appointments may end up stuck outside the U.S. for some time and be unable to return while waiting for the visa stamp, though this now is less likely to occur.
  • All U.S. embassies and consular posts were instructed to immediately suspend the issuance of nonimmigrant and immigrant visas for nationals of Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. Visa interviews for affected individuals are being canceled. The Department of State issued an urgent notice to citizens these countries, “please do not schedule a visa appointment or pay any visa fees at this time. If you already have an appointment scheduled, please do not attend. You will not be permitted entry to the Embassy/Consulate.”  UPDATE:  Visa processing has resumed.

Questions on entry

  • CBP immigration officers at the Ports of Entry may ask travelers to provide social media access, such as contact for Facebook pages, Instagram accounts, etc. Such requests should be declined, as the information is not required.
  • For some travelers, a delay will result from a request to Headquarters in Washington, DC, to clear the person.
  • The Order was not directed to nationals of Saudi Arabia, Bahrain, Oman, Qatar, & UAE, nor to nationals of Bangladesh, Egypt, Indonesia, Morocco, Pakistan, Turkey or other Muslim-majority countries. But some citizens of those countries report being subjected to enhanced secondary screening.
  • The highest scrutiny is being applied to citizens of one of the 7 countries, using a passport issued by one of the 7 countries, and travelling to the U.S. from one of the 7 countries.

Impact on USCIS petition and application processing

  • USCIS reportedly has ceased processing of all immigration petitions and applications for beneficiaries of the 7 countries, for forms that begin with an “I,” (I-130, I-765, etc.), but are processing forms that begin with “N” (such as N-400 naturalization applications).  UPDATE:  Processing has resumed.

Removal or questioning of persons in the U.S.

  • Persons with valid status in the United States are not subject to removal under the Executive Order.
  • Immigration officers who ask to enter the workplace or a home to ask for information about immigration in most cases may be refused if they lack a warrant.

Access to Counsel

  • A person who would like legal representation should ask for a “G-28” while in secondary at a Port of Entry, and even without a G-28, should state that they would like legal representation and to be able to speak to a lawyer and should not be dissuaded by an immigration officer saying the person is not entitled to counsel.

With no advance warning, U.S. Citizenship and Immigration Services (USCIS) revised more than 40 forms on the Friday of the 2016 December long holiday weekend. The forms all have an effective date the same day the notice was posted on its website, December 23, 2016. For most of the forms, no previous editions are acceptable, except for the Form I-129, Petition for Nonimmigrant Worker.  However, USCIS has indicated that it may apply discretion when receipting forms sent around that date, rather than rejecting them outright. Affected forms include the following:

I-90, I-102, I-129, I-129CW, I-129F, I-130, I-131, I-131A, I-140, I-191, I-192, I-212, I-290B, I-360, I-485, I-485 Supplement A, I-525, I-539, I-600, I-600A, I-601, I-601A, I-612, I-690, I-694, I-698, I-751, I-765, I-800, I-800A, I-817, I-824, I-910, I-924, I-924A, I-929, I-942, I-942P, N-300, N-336, N-400, N-470, N-600, and N-600K.

This change will affect green card renewals, business immigration cases, family immigration cases, work authorization applications, citizenship applications, and other types of cases. USCIS did not disclose the reason for the unanticipated change. Persons with concerns about impact on immigration status should contact an immigration attorney.

Filing fee increases for a number of the forms became effective December 23, 2016, as well, but USCIS had given prior notice of the fee increase.

UPDATE:  On December 29, 2016, USCIS announced a grace period for accepting older versions of the forms until Tuesday, February 21, 2017.  However, Monday, February 20, 2017, the day before the new forms are required, is a federal holiday – President’s Day. We recommend treating Thursday, February 16, 2017, as the last effective day for the grace period.  Older versions of the forms sent February 17 or thereafter without the date 12/23/16 at the bottom likely will be rejected (the exception is the Form I-129).

On February 25, 2015, the U.S. Department of Homeland Security published a Final Rule confirming that certain H-4 spouses will be eligible to apply for U.S. work authorization.  Following is an outline of this new Final Rule and how new H-4 work regulations will be implemented in the near future.

***

ARE ALL INDIVIDUALS IN H-4 STATUS NOW AUTHORIZED TO WORK IN THE UNITED STATES?

No.  Only certain individuals in H-4 status are eligible to apply for U.S. work authorization, based on their spousal relationship to an H-1B worker who has reached certain thresholds in his or her permanent, employment-based sponsorship by a U.S. employer.  The criteria for H-4 work authorization eligibility are narrow and specific.  Considerably less than 50% of H-4 spouses will be eligible to apply for work authorization.

Also, eligibility is limited to H-4 spouses only.  Dependent H-4 children are not eligible to apply for work authorization under the new rule.

WHICH H-4 SPOUSES ARE NOW ELIGIBLE FOR WORK AUTHORIZATION?

According to the final rule and new DHS regulations, all of the following criteria must be met to qualify for H-4 work authorization:

  • The H-4 applicant must be married to an H-1B specialty occupation worker;
  • The H-1B worker must be either:
    • a) the beneficiary of an approved I-140 petition
      OR
    • b) the beneficiary of an approved H-1B extension petition beyond the H-1B six-year limit based on AC21 s. 106(a) or (b) (due to having a PERM application or I-140 petition filed and pending for over 365 days, being the beneficiary of an approved I-140 petition, or having an I-485 application filed and pending);
  • The H-1B worker must currently hold valid H-1B status; and
  • The H-4 spouse must currently hold valid H-4 status.

I MEET THE CRITERIA FOR H-4 WORK AUTHORIZATION.  CAN I APPLY FOR U.S. JOBS IMMEDIATELY?

While you could apply for a job, a U.S. employer would not be able to hire you until you have received an official Employment Authorization Document.  Even H-4 spouses who meet all the eligibility criteria are not automatically authorized to work in the United States.  To officially obtain work authorization, you must file an application to U.S. Citizenship and Immigration Services for an Employment Authorization Document (aka “EAD” or “work permit”).  All U.S. employers are required to examine documents which prove your U.S. work authorization shortly after your hire.  If your only work authorization eligibility comes from your H-4 status and you do not have an EAD, no U.S. employer will be able to legally offer you work.

OK, I UNDERSTAND I NEED AN H-4 EMPLOYMENT AUTHORIZATION DOCUMENT (EAD) TO BEGIN WORK.  CAN I APPLY FOR MY EAD IMMEDIATELY?

No.  Changes to U.S. immigration rules and procedures typically require time to be implemented by U.S. government agencies, and this will hold true for the new Final Rule on H-4 spousal work authorization.  U.S. Citizenship and Immigration Services (USCIS) has announced it will begin accepting H-4 EAD applications on May 26, 2015.  Applications filed prior to this date may be rejected or denied.

WHEN THE APPLICATION WINDOW OPENS, WHAT FORM SHOULD I FILE, AND WHAT DOCUMENTS/EVIDENCE WILL I NEED TO SUBMIT ALONG WITH MY APPLICATION?

USCIS Form I-765, Application for Employment Authorization, is the application form which will be used for H-4 EAD applications.  Applications must be accompanied by a filing fee of $380.

Although USCIS has not yet modified its filing instructions for Form I-765 to include specific guidance for H-4 EAD applicants, it would be prudent to prepare evidence addressing all eligibility criteria, i.e.:

  • Marriage Certificate: The H-4 applicant must be married to an H-1B specialty occupation worker;
  • The H-1B worker must be either:
    • I-140 Approval Notice: a) the beneficiary of an approved I-140 petition
      OR
    • H-1B Extension (I-129) Approval Notice, along with Receipt Notice/Proof of Filing dated over 365 days ago for ETA Form 9089 or Form I-140; or I-140 Approval Notice; or I-485 Receipt Notice: b) the beneficiary of an approved H-1B extension petition beyond the H-1B six-year limit based on AC21 s. 106(a) or (b) (due to having a PERM application or I-140 petition filed and pending for over 365 days, being the beneficiary of an approved I-140 petition, or having an I-485 application filed and pending);
  • Current I-94 Record evidencing valid H-1B status, along with recent paystubs from H-1B employer: The H-1B worker must currently hold valid H-1B status; and
  • Current I-94 Record evidencing valid H-4 status: The H-4 spouse must currently hold valid H-4 status.

Before the application filing window opens on May 26, USCIS may issue further guidance as to required supporting documentation, including but not limited to these items.  Be sure to check USCIS’s website at: http://www.uscis.gov/i-765 for full instructions prior to filing.

WHAT CAN I EXPECT FROM THE USCIS APPLICATION PROCESS AND HOW SHOULD I PLAN AHEAD FOR FILING?

Average processing times for EADs, as of the time of this blog publication, are 2-3 months.  The H-4 Final Rule corroborates that USCIS should adjudicate the application within 90 days of receipt.

There are a few collateral considerations you should also keep in mind when preparing to file your H-4 EAD application, including:

  • When does my H-4 status and my spouse’s H-1B status expire?
  • Will the period of validity on my H-4 EAD be limited or foreshortened due to my upcoming H-4 status expiration?
  • Am I eligible to apply to extend my H-4 status right now?  (If so, consider filing your EAD application concurrently with your I-539 extension of status application.)
  • Is my spouse eligible to apply to extend his or her H-1B status right now?  (If so, consider filing your EAD application and your I-539 extension of status application concurrently with your spouse’s I-129 petition.  If the I-129 petition is filed under USCIS’s Premium Processing program, this might be a strategy which would yield faster processing of your applications.)

Note: as of the date of publishing this blog, USCIS has not yet released details regarding the prospective validity period of H-4 EADs, or the prospective processing of concurrently filed applications.

I DON’T PLAN ON WORKING IN THE UNITED STATES.  IS THERE ANY REASON TO APPLY FOR AN H-4 EAD ANYWAY?

Even if you do not plan to work in the United States, receiving U.S. work authorization allows you to apply for and be issued a U.S. Social Security Number.  Some individuals find having a U.S. Social Security Number desirable or useful.

IS THERE ANY REASON I MIGHT NOT APPLY FOR AN H-4 EAD IF I AM ELIGIBLE TO DO SO?

Any applicant who has more than one option for employment authorization should assess which one is the most favorable.  Practically speaking, H-4 EADs will be most useful for individuals which are subject to backlogs in employment-based immigrant visa categories.  These include spouses of H-1B workers from all countries whose employment-based sponsorship is in the EB-3 (third-preference) category, or spouses of H-1B workers from China or India whose employment-based sponsorship is in the EB-2 or EB-3 category.

Other prospective H-4 EAD applicants (i.e. spouses of EB-1 beneficiaries, or non-China/India spouses of EB-2 beneficiaries) may be eligible to immediately apply to USCIS for adjustment of status, and may be eligible for EADs on this basis, without needing to maintain H-4 status.

***
The full text of DHS’s Final Rule, including public comments and specific amendments to 8 CFR 214.2(h) and 274a, can be found in the Federal Register at: https://www.federalregister.gov/articles/2015/02/25/2015-04042/employment-authorization-for-certain-h-4-dependent-spouses.  An official press release from DHS/USCIS regarding the EAD application process can be found at: http://www.uscis.gov/news/dhs-extends-eligibility-employment-authorization-certain-h-4-dependent-spouses-h-1b-nonimmigrants-seeking-employment-based-lawful-permanent-residence.

 

In a bold move, on November 20, 2014, President Obama announced his Immigration Accountability Executive Actions to address flaws in the current immigration system.  The plan contains three parts:

  1. Enhanced border enforcement and employer crackdowns for ongoing immigration violations;
  2. Administrative relief from deportation to allow certain undocumented immigrants to apply to remain in the United States; and
  3. Business-friendly policies to enhance U.S. competitiveness and attract foreign investment and talent.

While the focus has been on the administrative relief, the rest of the plan offers potential improvements for some employment-focused immigration categories:

  •  L-1B specialized knowledge workers:
    • Clarifying the rules to bring greater coherence and integrity, to “enhance companies’ confidence in the program”
  • H-4 spouses of H-1B workers:
    • Providing work authorization to spouses once the H-1B worker’s green card process is well underway
  • Foreign nationals caught in a backlog while seeking permanent resident status:
    • For foreign workers in line for a green card, removing unnecessary restrictions on natural career progression without being tied to one job
    • For their spouse and children, providing work authorization at an earlier stage through a registration process
    • Allowing spouses and children of lawful permanent residents to apply for waivers of unlawful presence without leaving the U.S.
  • For F-1 foreign students eligible to work after graduation from a U.S. college or university:
    • Expanding the degree programs eligible for extended periods of work beyond 12 months
  • For foreign inventors, researchers, and founders of start-up enterprises:
    • Making the “national interest waiver” category available for permanent resident status
    • Offering temporary parole in the U.S. under the “significant public benefit” standard
  • Employers using the PERM process prior to sponsoring foreign workers for green cards:
    • Modernizing the process, including the possibility of expedited, premium processing
    • Identifying demonstrated shortages and surplusages

Building on the existing Deferred Action for Childhood Arrivals (DACA) program, through which young adults brought to the U.S. as children and lack status, the administrative relief plan has the following provisions.

  • Deferred Action for Parents (DAP).
    • Requirements for the parent
      • Have a U.S. citizen child (of any age); or
      • Have a lawful permanent resident child (of any age);
      • Arrived in the U.S. by January 1, 2010;
      • Have been continuously present in the U.S. since January 1, 2010;
      • Pass background checks;
      • Pay taxes (though evidence of payment of back taxes is not required).
    • Relief
      • Eligible to apply for deferred action, which will be granted for a 3-year period and can be extended.
      • Work authorization comes with the DAP approval.
    • Timing
      • The process should be available by Spring 2015.

 

  • Expansion of Deferred Action for Childhood Arrivals (DACA).
    • Requirements for the applicant
      • Arrived in the U.S. before turning 16 years old;
      • Arrived in the U.S. by January 1, 2010;
      • Have been continuously present in the U.S. since January 1, 2010;
      • Pass background checks.
    • Relief
      • Eligible to apply for deferred action, which will be granted for a 3-year period, and can be extended.
      • Work authorization comes with the DAP approval.
    • Timing
      • The plan is to have applications available by January 2015.

The administrative relief plan, a step in the right direction toward fixing our country’s broken immigration system, has the following limitations:

  • Neither DACA or DAP gives any immigration status.
  • Only temporary reprieve from deportation is available.
  • The programs do not grant green cards or citizenship.
  • They do not provide for any path to green cards or citizenship.
  • They are not available immediately.
  • Many undocumented persons will not be eligible.
  • The plan relies on the President’s prosecutorial discretion authority, recognizing that immigration enforcement is necessarily selective and that Congress funds capacity for about 400,000 deportations each year.

Nevertheless, the plan could expand the legal workforce by about four million.

Employers and businesses should be alert for opportunities to take advantage of the components of the plan.

Chinese citizens who would like to travel to the United States now can have a visa valid for up to 10 years.  Previously, the limit was one year.  During President Obama’s November 2014 visit to China, the two countries agreed to reciprocal expansion of the timeframe.

This does not mean a Chinese citizen can remain in the United States for 10 years.  A visa allows a person who comes to a U.S. port of entry at an airport or border crossing to “knock on the door.”  Immigration officers with U.S. Customs and Border Protection (CBP) under the Department of Homeland Security determine the length of stay for each visit.  Immigration regulations allow for business visitors with B-1 visas and tourists with B-2 visas to remain for up to one year, but the more typical period of stay allowed is 90 days or six months, or a period needed to accomplish the purpose of the visit.  However, a 10-year visa eliminates the need for annual visits to the U.S. Embassy or Consulate for visa renewals for subsequent travel to the United States.

Student F-1 visa and exchange visitor J-1 visa validity is increased from one to five years.  Even with a five-year visa, an exchange visitor generally only can remain up to 18 months, plus a grace period of 30 days after the status ends.  Students may remain in the U.S. for the period of time needed to complete the study, plus one year optional practical training after completing a degree, plus a 60-day grace period.

Visitors with B-1 or B-2 status are not permitted to work for a U.S. employer.  Students and exchange visitors have work options that must be closely tied to the study or exchange purpose of the visa.

On May 6, 2014, the U.S. Department of Homeland Security (DHS) officially announced that the United States will offer employment authorization to H-4 spouses of H-1B specialty occupation workers, under certain conditions.

Historically, H-4 spouses of H-1B workers have not had the right to work in the United States, although they have been able to legally reside in the United States and enroll in U.S. schools during the period of H-1B approval.  Many spouses in H-4 status become eligible to apply for U.S. employment authorization when the H-1B principal is sponsored for Lawful Permanent Resident status by a U.S. employer.  However, due to quotas restricting the number of employment-based green cards issued each year, many H-4 spouses (especially from India and China) must wait for many years after such sponsorship before they can apply for employment authorization.  The new H-4 provisions appear targeted to benefit these individuals.

Eligibility for H-4 employment authorization is tied to the principal H-1B worker.  H-4 spouses will be eligible to apply for employment authorization if their H-1B worker husband or wife:

  • Is the beneficiary of an approved I-140 filed by a U.S. employer; or
  • Has been granted an extension of H-1B status beyond the six-year limit based on the American Competitiveness in the Twenty-first Century Act of 2000 (Public Law 106-313).

H-4 employment authorization application fees, forms and processes will be clarified through proposed regulations, which DHS has promised to release soon.  As of now, it is not clear when DHS will begin receiving and processing such applications.

This new opportunity for H-4 spouses represents DHS’s recognition of the potential value that spouses of skilled foreign workers bring to the U.S. economy.  Many spouses in H-4 status are themselves professionals or would-be entrepreneurs, but are unduly prevented from entering the U.S. workforce due to visa quota backlogs.  DHS Deputy Secretary Alejandro Mayorkas has called the new H-4 employment rules an effort to “retain and attract world-class talent … [to] ensure [the United States] do[es] not cede the upper hand to other countries competing for the same talent.”

Click here to read a copy of DHS’s press release regarding H-4 employment authorization.

April 1, 2014, is the first day USCIS will accept H-1B petitions for quota/cap-subject cases for FY 2015, commencing October 1, 2014.  Only 65,000 H-1Bs are available nationwide per year for new jobs for foreign workers requiring Bachelor’s degrees, and only 20,000 for those requiring Master’s or advanced degrees. With demand for H-1B workers high, the quota likely will be filled quickly, leading USCIS to conduct a computer-generated random selection process, known as the ” lottery,” to randomly select which of cases will be receipted and adjudicated under the cap.  Information gleaned from USCIS regulations and recent press release postings yields a few tips:   

  • USCIS expects to receive a high volume of H-1B petitions this year. 
  • The quota is likely to be exceeded in the first few days of April.
  • Regulations require USCIS to accept petitions received the first five business days of April.  With April 1st a Tuesday, the fifth business day will be Monday, April 7, meaning petitions must be sent by Saturday, April 5.
  • Initial review will sort out multiple or duplicative H-1B petitions filed by an employer for one employer.  Regulations require USCIS to deny or revoke those multiple or duplicative petitions that an employer files for the same H-1B worker, and they will not return or refund the filing fees.
  • Master’s cap petitions will be sorted from non-Master’s cases and subjected to the random process to select the 20,000 that will be processed. 
  • All cases not selected as part of the U.S. Master’s lottery will be entered into the bachelor’s cap lottery, in which 58,200 cases (65,000 minus 6,800 carved out for Chile and Singapore H-1Bs) will be subjected to the random system to select those that will be adjudicated. 
  • Rejected petitions will be returned to the attorney or employer along with the filing fees (except for multiple or duplicative filings by an employer for an employee).
  • For H-1B cap petitions accompanied by the premium processing fee – an extra $1225 USCIS filing fee – requesting processing within 15 days of filing, USCIS will delay the start of the 15-day period, possibly until Monday, April 28.
  • Employers probably will not know whether a petition has been accepted and made it through the lottery until processing has begun and USCIS sends a receipt notice, or until the attorney or employer receives the rejected petition.
  • Premium processing does not increase the change of being selected in the lottery, but may enable earlier notification of whether the petition was accepted or rejected.
  • Petitions filed without premium processing may take several months to process, but should be processed before October 1, 2014.
  • Because of the five-business-day rule, a petition that USCIS received on April 1, 2, 3, 4, or 7 has the same chance of being accepted and the same risk of being rejected as a petition sent on March 31.

In the unlikely event that the quota is not filled during the first five business days in April, then USCIS will continue to accept petitions day-to-day until the H-1B quota is reached.

Effective October 1, 2013, U.S. federal government operations are experiencing a lapse in appropriations due to the inability of Congress to pass a funding bill.  The shutdown is preventing employers from filing H-1B petitions for new employees, as well as from seeking extensions for existing H-1B workers.  Other immigration categories are affected, as well.  As a consequence, some foreign workers will be forced into a lapse of status that could impact not only current status, but also future efforts to obtain a green card. 

Shutdown Implications on H-1B Status

U.S. Citizenship & Immigration Services (USCIS) under the Department of Homeland Security is the agency that adjudicates H-1B petitions.  Because it is funded by fees, USCIS is not shutdown and could process H-1B cases. 

However, the Department of Labor (DOL) is shutdown, with employees furloughed and operations suspended.  The DOL is the agency that determines prevailing wages for H-1B cases.  Before filing an H-1B case, employers submit a prevailing wage request to the DOL online with a Labor Condition Application (LCA).  The DOL has ceased accepting LCAs as of October 1, and also ceased processing LCAs pending as of that date.  Without an LCA certified by the DOL, USCIS cannot process an H-1B. 

Though it is open, USCIS is refusing to accept any H-1Bs, returning entire packages with a notice directing to “resubmit your petition with a properly signed Labor Condition Application,” because the “form you submitted is missing the Department of Labor official’s signature.” 

The DOL takes seven days to process LCAs.  To have avoided stalled H-1B petitions, an employer must have submitted an LCA to the DOL online by September 24, so that the LCA could have been certified and contain the requisite “Department of Labor official’s signature” by September 30, while the DOL still was functioning. 

As an alternative to the online LCA processing, the DOL could accept paper-filed LCAs.  However, mail and courier packages sent to the DOL after October 1 have been undelivered because all the workers are furloughed, and there is no one to receive any deliveries.  FedEx notices for attempted delivery say “Business closed.”

This aspect of the shutdown will prevent employers from hiring H-1B workers who otherwise would be able to transfer from existing employers.  It also will force current employees with valid status to appear to fall out of status if their H-1B expires after October 1 and an extension is not currently pending with USCIS.

USCIS could agree to accept H-1B petitions without signed LCAs, as it has done in the past, and also could accept pro forma, unfiled LCAs.  By simply accepting the petition and issuing a receipt notice, USCIS would give sufficient evidence that the H-1B worker could lawfully remain in the U.S. and continue working pending LCA certification and pending final H-1B adjudication.  Without such discretion, USCIS will force a worker to lose status and ultimately will make more work for itself when adjudicating subsequent petitions.  

Shutdown Implications on E-3 Status

E-3 status is similar to H-1B status, but is based on a treaty between the U.S. and Australia and only is available to Australian citizens.  E-3 status also requires an LCA.  As with H-1Bs, USCIS will not accept E-3 petitions with LCAs the DOL did not certify before the shutdown. 

E-3 visas alternatively may be processed through the Department of State at U.S. embassies and consulates abroad. However, they, too, insist on a certified LCA for E-3s.  In general, the State Department is open for visa processing.  It is possible to make an E-3 visa appointment at an embassy or consulate, but the E-3 will not be processed until the shutdown has lifted and the visa applicant presents an LCA certified with the “Department of Labor official’s signature.”

Options for Alleviating Implications on Temporary Workers

USCIS regulations provide for excusing a status lapse that occurred through no fault of the foreign worker. USCIS tends to insist on evidence of what caused the status lapse as well as efforts to avoid it.  Employers with workers facing H-1B or E-3 expiration must do the following:

  • File the extension application, even though it is certain the petition will be rejected;
  • Keep the evidence of rejection to submit when refiling after the government shutdown ends; and
  • When a petition is filed for the worker who fell out of status, request that USCIS exercise its discretion to forgive the lapse.

One other option for H-1Bs is that is the worker can request an additional 10 days added to the expiration date before status expires.  The request is made to Customs and Border Protection (CBP), another agency under the Department of Homeland Security.  CBP is located at land border crossings and international airports, and has inland “Deferred Action” sites what may provide evidence of the 10-day period.  CBP typically gives the additional 10-day period on request at entry to the U.S., for an H-1B worker who anticipates needing the time period to wrap up matters after the H-1B job ends, prior to returning home.  Under these circumstances, ten days could be enough time for the government to re-open, an LCA to be submitted and certified, and for USCIS to accept the H-1B petition.  Having the additional 10-day authorization could alleviate complications for some. 

Shutdown Implications on Future Green Card

The green card process can last for years, depending on backlogs and other factors.  Those affected by the shutdown could feel the impact on future applications for permanent residence.  

A general condition of seeking to adjust from a temporary status, such as H-1B or E-3 status, to permanent resident status with a green card, is that the person must have maintained status throughout the duration of stay in the United States.  There are some exceptions.  For most employment-based green card cases, under Section 245(k) of the Immigration and Nationality Act, certain types of status violation that lasted for under 180 days, including work without evidence of authorization, could be excused, enabling the person to become a permanent resident despite the lapse.  Again, excusing the status violation is up to the discretion of USCIS, but the circumstances of U.S. government intransigence merit the exercise of discretion.

Employers should note, however, that Section 245(k) does not excuse compliance with rules requiring employment verification.

USCIS could lighten the burden of the government shutdown on employers and their foreign workers.  Even if it does not, some exceptions and work-arounds exist.  But the unintended consequences of this October 2013 shutdown could haunt foreign workers for years into the future.

Effective October 1, 2013, U.S. federal government operations are experiencing a lapse in appropriations due to the inability of Congress to pass a funding bill.  Following are implications on immigration-related government services that may impact employers:

Department of State:  Visa processing.  As of October 1, 2013, visa issuance and full operations are to continue as usual.  However, if a passport agency is located in a government building affected by a lapse in appropriations, that facility may become unsupported. 

Department of Labor:  Employees furloughed; operations suspended.

No processing of Labor Condition Applications (LCA) for H-1B or other cases, prevailing wage requests of PERM applications. 

If a PERM application is ready to be filed, has a deadline, and cannot be efiled, mailing the application may be an option, but at the risk of potential processing delays. 

Department of Homeland Security

U.S. Citizenship & Immigration Services (USCIS):  As of October 1, 2013, USCIS reports that “all offices are open worldwide,” including the following:

  • Regional Service Centers and processing centers for applications and petitions
  • Local USCIS offices

USCIS has not reported whether it will accept cases for processing, in particular, H-1B petitions with an LCA not yet certified by the DOL.

Citizenship & Immigration Services (CIS) Ombudsman office:  Employees furloughed; operations suspended. 

Customs & Border Protection (CBP) Port of Entry Operations, including CBP Cargo Security and Revenue Collections, as well as Border Security programs, including Border Patrol and CBP Air and Marine Operations:  Continued operations, because they have been deemed law enforcement necessary or necessary for the safety of life and protection of property.

E-Verify:  Unavailable; operations suspended.  E-Verify, the free, internet-based system that allows businesses to determine the eligibility of their employees to work in the United States, will be inaccessible during the shutdown. 

Employers must continue to complete I-9 forms in compliance with the law and when E-Verify becomes available, create cases in the E-Verify system.

While E-Verify is unavailable, according to the E-Verify website, employers will not be able to access the E-Verify account, and as a result, will be unable to do the following:

  • Enroll any company in E-Verify
  • Verify employment eligibility
  • View or take action on any case
  • Add, delete or edit any User ID
  • Reset passwords
  • Edit your company information
  • Terminate an account
  • Run reports
  • View ‘Essential Resources.’ Please note that all essential resources may be found by visiting www.dhs.gov/e-verify.

In addition, E-Verify Customer Support and related services are closed.  As a result: 

  • Employees will be unable to resolve Tentative Nonconfirmations (TNCs).
  • Telephone and e-mail support will be unavailable.  E-Verify will respond to e-mails sent, when the suspension is lifted.
  • E-Verify webinars and training sessions are cancelled
  • E-Verify Self Check will not be available

The following temporary policies have been implemented:

  • The ‘three-day rule’ for E-Verify cases is suspended for cases affected by the shutdown. This does NOT affect the Form I-9 requirement—employers still must complete the Form I-9 no later than the third business day after an employee starts work for pay.
  • The time period during which employees may resolve TNCs will be extended.  Days the federal government is closed will not count towards the eight federal government workdays the employee has to go to SSA or contact Homeland Security.
  • For federal contractors complying with the federal contractor rule, please contact your contracting officer to inquire about extending deadlines.
  • Employers may not take any adverse action against an employee because of an E-Verify interim case status, including while the employee’s case is in an extended interim case status due to a federal government shutdown (consult the E-Verify User Manual for more information on interim case statuses).

Department of Justice (DOJ)

The DOJ has indicated that its trial attorneys and immigration judges will conduct removal (deportation proceedings) only for individuals in federal custody. All other cases are suspended during the shutdown.

A congressional immigration reform proposal passed its first test and was approved by the Senate Judiciary Committee on May 21, 2013.  Action on the bill had been expected before the Memorial Day break, but not so much sooner than the self-imposed deadline. 

The Committee reached a key compromise related to H-1B specialty occupation workers, with the following provisions: 

  • H-1B numbers would increase, from 65,000 per year to a range of between 110,000 and 180,000.
  • Filing fees for H-1B petitions would increase substantially.
  • Employers must recruit U.S. workers but need not offer jobs to all U.S. workers who are qualified.
  • H-1B workers may not be paid less than U.S. workers with the same position, and employers dependent on the foreign workers must pay higher than Level 1 wages to the H-1B workers.
  • Outsourcing through job shops who employ H-1B workers is restricted.

The legislation would treat foreign graduates with U.S. science, technology, engineering or math (STEM) degrees more favorably than those with other degrees, allowing them to skip the H-1B process and apply directly for permanent residence and a green card.

The bill contains widescale changes to immigration law going well beyond H-1B employment.  The next step will be debate of all the provisions by the full Senate   The House has just begun to start releasing its immigration reform bills.