Immigration Filing Issues

On Friday, March 3, 2017, U.S. Citizenship and Immigration Services (USCIS) announced a temporary suspension of the premium processing option for all H-1B petitions filed on or after April 3, 2017. This suspension includes Fiscal Year 2018 H-1B Cap cases, as well as cap-exempt petitions.

Premium processing is an expedited filing option for certain nonimmigrant and immigrant visa petitions.  Employers may submit a premium processing request on Form I-907 and pay an additional filing fee of $1,225 so that USCIS will take action on that petition within 15 calendar days. The premium processing option allows companies additional time to develop alternative employment strategies for its employees.  It also affords peace-of-mind for employer-sponsors and employee-beneficiaries. Most notably, premium processing reduces the risk of nonimmigrant status issues that may arise from an employee’s international travel plans.

USCIS stated that this suspension has been implemented in an effort to reduce overall processing times for regularly filed H-1B petitions, which are currently taking eight to 10 months to process. USCIS confirmed that the suspension is likely to last at least 6 months to allow adjudicators to catch up on the existing backlog.

Employees should contact HR, and companies are encouraged to work with their immigration legal counsel to evaluate options in light of the suspension.  Delayed processing times could affect continued employment eligibility as well as travel eligibility for H-1B employees.

USCIS has stated that it will accept an expedite request for an H-1B petition if the company can demonstrate that it meets at least one of the following criteria:

  • Severe financial loss to company or person;
  • Emergency situation;
  • Humanitarian reasons;
  • Nonprofit organization whose request furthers the cultural and social interests of the United States;
  • Department of Defense of national interest situation;
  • USCIS Error; or
  • Compelling interest of USCIS.
  • To demonstrate that a company’s need for an expedited H-1B approval falls under one of these criteria, significant documentary evidence must be submitted and the ultimate decision will be at the discretion of USCIS. Lane Powell will continue to evaluate options and provide updates.

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).

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 new client contacted me with an urgent dilemma: She had just been told that her US citizen child was not really a US citizen, and USCIS planned to deny the child’s application for a certificate of citizenship.  But the child already had a US passport, issued by the US Department of State.  The client was sure that USCIS was wrong because her child had derived US citizenship under the Child Citizenship Act of 2000, and after analyzing the case, I agreed–the child was clearly a US citizen.  But what could be done to get USCIS to recognize its error  and issue the certificate of citizenship?  The client could sue USCIS in federal court–but perhaps there was an easier and less expensive path.  In the end, before filing a lawsuit, we filed a request for assistance with the Citizenship & Immigration Services Ombudsman.

Immigration cases are often very complicated, and the complexity of the law and constantly changing procedures often lead to situations where a case ends up in limbo, the Government makes a mistake, or the case may need to be expedited to prevent hardship.  When the matter involves a mix-up or delay at United States Citizenship & Immigration Services (USCIS), the Ombudsman’s Office can help.  Asking the Ombudsman for help is free; one simply fills out a form (DHS-7001) and sends it to the Ombudsman; in Texas and Washington, DC, one can even file the form online through a new pilot program.  The Ombudsman has a website that provides a link to the DHS-7001 and the procedures for filing it.

Before filing a DHS 7001 form with the Ombudsman, we go through these steps to try to resolve the problem:

  • Call the USCIS National Customer Service Center at 1-800-375-5283 (or for cases involving US military members, 1-877-CIS-4MIL (1-877-247-4645))
  • Check My Case Status Online
  • Make an INFOPASS Appointment with USCIS

If none of those steps will resolve the problem, filing the DHS 7001 may be the next best step. 

In fact, in the case discussed above, the help of the Ombudsman resulted in a quick reversal of USCIS’s initial erroneous decision, and the child was able to get her certificate of citizenship.

Moving is always stressful, and notifying government agencies of a move can add to the stress for non-US citizens.  Often, failure to notify the correct government agency that one has moved to a new address will lead to denial of an immigration application–in extreme cases, it can even lead to deportation.

Recently, the Department of Homeland Security posted a very helpful chart  to assist non-citizens with properly notifying government agencies of address changes. The chart explains who should report a change of address, the time when such reports are due, how to report a change of address, and where to find the forms needed to make such notifications.  In addition to notifying the government agencies of your change of address, always be sure to notify your attorney–in fact, your immigration attorney should be first on your list of notifications, because your immigration attorney can help you notify the government correctly.  When you do notify the government of a change of address, be sure to keep copies of all forms and correspondence that you send–this documentation will be essential if the Government later claims that it never received your notice of your address change.