USCIS Announces FY 2020 H-1B Cap Season Start, Updates, and Changes

On March 19, 2019, U.S. Citizenship and Immigration Services (USCIS) announced the start of the fiscal year (FY) 2020 H-1B cap season, start dates for premium processing of cap-subject H-1B petitions, and the launch of its new H-1B data hub, while reminding petitioners of its new H-1B cap selection process. Below are highlights of the changes.

Start of FY 2020 cap season. USCIS will begin accepting H-1B petitions subject to the FY 2020 cap on April 1, 2019, and will reject any FY 2020 cap-subject H-1B petitions filed before April 1. You can find detailed information on how to complete and submit a FY 2020 H-1B petition here.

Premium processing for FY 2020 cap-subject petitions. Premium processing will be offered in a two-phased approach during the FY 2020 cap season "so USCIS can best manage premium processing requests without fully suspending it as in previous years," the agency said. The first phase will include FY 2020 cap-subject H-1B petitions requesting a change of status. The second phase will include all other FY 2020 cap-subject petitions.

Starting April 1, FY 2020 cap-subject H-1B petitioners requesting a change of status on their Form I-129, Petition for a Nonimmigrant Worker, may request premium processing by concurrently filing Form I-907, Request for Premium Processing Service. However, to prioritize data entry for cap-subject H-1B petitions, USCIS will not begin premium processing for these petitions immediately. USCIS said it will begin premium processing for these petitions by May 20, 2019, and will notify the public before premium processing begins for these petitions. If a petitioner does not file Form I-907 concurrently with a FY 2020 H-1B cap-subject petition requesting a change of status, the petitioner must wait until premium processing begins to submit Form I-907. Until premium processing begins for these petitions, USCIS will reject any Form I-907 that is not filed concurrently with a cap-subject Form I-129. Petitioners must appropriately select response "b" for Item 4 in Part 2 of Form I-129 to be eligible to concurrently file Form I-907, USCIS said.

Premium processing for all other FY 2020 cap-subject H-1B petitions will not start until at least June 2019, the agency noted. Cap-subject petitioners not requesting a change of status may not submit their premium processing requests concurrently with their H-1B petitions. These petitioners will be eligible to upgrade to premium processing by filing Form I-907 once premium processing begins for this group. USCIS said it will notify the public with a confirmed date for premium processing for cap-subject petitioners not requesting a change of status.

At this time, premium processing for H-1B petitions that are exempt from the cap, such as extension of stay requests, remains available, USCIS said.

Note: Reaction to the guidance has been mixed. Some say they are not filing for premium processing before lottery selection. Given the costs of applying for premium processing ($1,410 as of this writing), their suggestion is that cases only be premium processed once they have been selected in the lottery. By this reasoning, even if you are filing a change of status H-1B petition, filing for premium processing concurrently with a petition that might not even be selected for adjudication risks rejection not only of the premium processing request but of the entire petition (and loss of the cap number) if there are any problems with the premium processing check. On the other hand, some would like to file for premium processing before lottery selection. Their human resources representatives feel that it's easier to try premium processing rather than go back to the hiring managers later to seek additional funds.

New H-1B data hub. USCIS also announced a new "H-1B Employer Data Hub" that will be available on uscis.gov on April 1, 2019. The data hub is part of USCIS's "continued effort to increase the transparency of the H-1B program by allowing the public to search for H-1B petitioners by fiscal year, North American Industry Classification System (NAICS) industry code, company name, city, state, or zip code. This will give the public the ability to calculate approval and denial rates and to review which employers are using the H-1B program," USCIS said.

New H-1B cap selection process. In January, the Department of Homeland Security announced a final rule amending regulations governing cap-subject H-1B petitions, including those that may be eligible for the advanced degree exemption. The final rule reverses the order by which USCIS selects H-1B petitions under the H-1B regular cap and the advanced degree exemption, which will be in effect for the FY 2020 cap season. This change "increases the chances that more of these visas will be granted to those with an advanced degree from a U.S. institution of higher education," USCIS said.

More details are available here. NAICS information and codes are available here.

DOL Issues Bulletin on Compliance With H-1B Posting Requirements When Using Electronic Means

The Department of Labor's Wage & Hour Division (WHD) said it has seen a rise in the use of electronic notifications as workplaces increasingly provide their employees with documents by electronic means. Among other things, WHD noted, an H-1B petitioner must notify affected U.S. workers of its intent to hire H-1B nonimmigrant workers. This notification requirement, commonly referred to as the notice or posting requirement, informs U.S. workers of the terms of employment of nonimmigrant workers, the right of U.S. workers to examine certain documents, and the ability of U.S. workers to file complaints if they believe that violations have occurred.

A new Field Assistance Bulletin (FAB) reiterates an H-1B petitioner's obligations when using electronic means to make the required notice to all affected employees. This includes those who are employed by a third-party employer. The bulletin is available here.

April Visa Bulletin Notes Movement in Many Employment-Based Categories

The Department of State's Visa Bulletin for April 2019 notes that Final Action Date movement in many employment-based preference categories continues to be greater than might ordinarily be expected. This is anticipated to continue for at least the next few months.

The Department explained that this movement is a direct result of fewer applicants proceeding to final action on their cases at consular posts abroad and at U.S. Citizenship and Immigration Services offices. Once large numbers of applicants begin to have their cases brought to final action, final action date movements will necessarily slow or stop, the bulletin says. Moreover, in some categories, final action date retrogression is a possibility if demand levels are excessive. Therefore, the recent rates of final action date advances will not continue indefinitely, but the bulletin notes that "it is not possible to say at present when they will end."

The April 2019 Visa Bulletin is here.

USCIS Updates Filing Addresses for Nonimmigrant Worker Petitions

U.S. Citizenship and Immigration Services has updated the addresses for filing Form I-129, Petition for a Nonimmigrant Worker.

The new addresses are here. Hodkinson Law Group advises checking addresses shortly before filing because they can change without notice.

Self Check Now Requires myE-Verify Account

Self Check, a feature that allows employees to verify their employment eligibility, now requires a myE-Verify account, U.S. Citizenship and Immigration Services (USCIS) announced. Employees will be prompted to create or log in to myE-Verify accounts, where they can perform multiple Self Check queries and lock their Social Security numbers to prevent others from using them in E-Verify. "The streamlined account creation process continues to protect employee information while eliminating the need for repeated identity-proofing," USCIS said.

Those with questions should contact myE-Verify Customer Support at myeverify@uscis.gov, the agency said. For more on E-Verify, see here.

Trump Administration Plans to Close USCIS International Operations

According to reports, the Trump administration plans to close international U.S. Citizenship and Immigration Services (USCIS) offices by the end of 2019. USCIS Director L. Francis Cissna told senior staff that the agency's International Operations Division, which operates in more than 20 countries, will be closed down. The duties of those offices will be transferred to U.S. embassies and consulates and to domestic U.S. offices and the Department of State (DOS), if DOS agrees. USCIS personnel staffing those offices will return to the United States.

DOS said if it reaches such an interagency agreement, "we anticipate a smooth transition and continued efficient processing of USCIS-related work at all of our missions overseas." DOS has more than 200 posts worldwide.

Director Cissna said in an email to staff that the closures will "better leverage our funds to address backlogs in the United States while also leveraging existing [DOS] resources at post." He noted that change "can be difficult and can cause consternation. I want to assure you we will work to make this as smooth a transition as possible for each of our USCIS staff while also ensuring that those utilizing our services may continue to do so and our agency operations continue undisrupted.

In addition to helping people apply for immigration benefits, these offices provide assistance in such tasks as helping U.S. citizens and lawful permanent residents, including military personnel abroad, bring family members to the United States or help them apply for U.S. citizenship; international adoptions; refugee resettlement; and immigration fraud investigations.

According to the International Operations (IO) Division's website, the division's work includes reuniting families, enabling adoptive children to come to join permanent families in the United States, considering parole requests from individuals outside the United States for urgent humanitarian reasons or significant public benefit, and providing information services and travel documents to people around the world, including those with unique needs and circumstances. "Operating in a dynamic global environment with constantly changing political, cultural, environmental, and socio-economic contexts, IO has approximately 240 employees located in the U.S. and in three international districts composed of 24 field offices in 21 countries. Our employees are highly diverse and include foreign nationals in addition to U.S. citizens; foreign nationals make up more than half of the IO staff working abroad and approximately one-third of all IO employees."

Immigration advocates expressed concerns about further discouraging immigrants and disengaging the United States from the rest of the world. Barbara Strack, former chief of USCIS' Refugee Affairs Division, said the closures would "throw [the legal immigration system] into chaos around the world." She warned that the move would "smack all government employees abroad, including folks in the military, who have a foreign spouse or kids they are trying to bring to the U.S. legally."

More information about IO is here.

USCIS Resumes Premium Processing for All H-1B Petitions

U.S. Citizenship and Immigration Services (USCIS) has resumed premium processing for all H-1B petitions as of March 12, 2019. All H-1B petitions may be upgraded to premium processing or filed originally with a request for premium processing.

In recent years, USCIS has discontinued premium processing for H-1B cap cases in April to allow sufficient time for application of the lottery and receipting-in of selected petitions. Last year, the agency extended the suspension of premium processing well beyond the cap filing season and expanded the suspension to include most H-1B petitions.

In January 2019, premium processing was restored for FY 2019 cap-subject petitions that were filed in April 2018 and remained pending. In February, USCIS resumed premium processing for non-cap H-1B petitions filed before December 21, 2018. Now USCIS has restored premium processing for all H-1B petitions.

It is not clear whether the agency will continue premium processing for all H-1B petitions once H-1B cap petitions are filed in the first week of April. It is possible that USCIS could discontinue premium processing again for H-1B cap petitions or even other types of petitions.

To request an upgrade to premium processing for pending petitions that have received a Request for Evidence (RFE), petitioners should include their request for premium processing, along with the required fee, when submitting the response to the RFE. The USCIS filing fee for premium processing is $1,410, which guarantees action on the petition within 15 calendar days of USCIS's receiving the request. If USCIS does not take adjudicative action within the 15-day window, the agency refunds the petitioner's premium processing fee and continues with expedited processing of the petition.

Those who received a transfer notice for a pending H-1B petition and are requesting premium processing service must submit the premium processing request to the service center now handling the petition. They should also include a copy of the transfer notice with the premium processing request to avoid possible delays. If the petition was transferred and the petitioner sends the premium processing request to the wrong center, USCIS will forward it to the petition's current location. However, the premium processing "clock" will not start until the premium processing request has been received at the correct center.

The USCIS notice, which includes additional details about where to send premium processing requests in the event of a transfer, is here.

USCIS Releases Notes on H-1B Filing Tips and RFEs

U.S. Citizenship and Immigration Services (USCIS) has released the official minutes from its teleconference on "H-1B Filing Tips and Requests for Evidence (RFEs)," held March 7, 2019.

Among other things, USCIS discussed five common reasons for RFEs on H-1B petitions:

  1. Evidence demonstrating that the offered position qualifies as a specialty occupation;
  2. Whether the labor condition application properly corresponds to the proffered position in the petition;
  3. Evidence of the employer-employee relationship and qualifying work;
  4. Evidence of the beneficiary's qualifications; and
  5. Itineraries.

The minutes are here.

Europe to Require Authorization of U.S. Travelers, Not Visas, for Short-Term Travel

Recent news reports erroneously stated that starting in 2021, U.S. citizens traveling to Europe will need visas. In fact, pre-travel automated screening and authorization, but not visas, will be required to check for "security and migration risks" for those benefiting from visa-free access to Schengen area countries, according to the European Commission (EC). The "European Travel Information and Authorisation System" (ETIAS) will cross-check visa-exempt travelers, including those from the United States, against European information systems for borders, security, and migration. The automated check is expected to take "minutes" in most cases. The application fee is expected to be about $8.

An EC fact sheet states that an ETIAS travel authorization does not reintroduce visa-like obligations. There is no need to go to a consulate to make an application, no biometric data are collected, and significantly less information is gathered than during a visa application procedure. As a general rule, a Schengen visa procedure can take up to 15 days, and can in some cases be extended up to 30 or 60 days, but the online ETIAS application "only takes a few minutes to fill in. The validity will be for a period of three years, significantly longer than the validity of a Schengen visa. An ETIAS authorisation will be valid for an unlimited number of entries," the EC states. U.S. travelers staying in Europe for more than 90 days must have a visa.

The Schengen area includes 26 of the 28 European Union (EU) countries, and a few non-EU countries. A list of countries in the Schengen area is here. The European Commission's statement is here. Additional details are here.

SSA Announces New Travel and Border Crossing Records System

The Social Security Administration (SSA) has announced a new "Travel and Border Crossing Records" system. The new system will collect information about applicants, beneficiaries, and recipients under Titles II, XVI, and XVIII who have had absences from the United States.

The SSA noted that currently, the agency relies on individuals to self-report their foreign travel. Often, the SSA said, it does not receive these reports or receives them untimely, which results in improper payments. For example, the SSA noted, in general, it suspends Title II benefits to aliens who remain outside of the United States for more than six consecutive calendar months. It generally suspends Title II benefits to both U.S. citizens and non-U.S. citizens who travel to a country where payment is restricted by the United States. Additionally, the SSA suspends Title XVI payments to both citizen and noncitizen recipients who are outside of the United States for a full calendar month or 30 consecutive days or longer. With regard to Title XVIII, the SSA plans to collect this information to make decisions on Medicare entitlement claims and to make determinations on physical presence in the United States.

Read the SSA notice here.

New Publications and Items of Interest

The latest E-Verify webinar schedule from USCIS is available.

Advisories and tips:

Government Agency Links

Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, or the Department of State's latest Visa Bulletin with the most recent cut-off dates for visa numbers:

Attorneys at Hodkinson Law Group

Kehrela Hodkinson

Principal/Immigration Lawyer - California State Bar, 1980

Since 1994, Mrs. Hodkinson has exclusively practiced U.S. immigration law in London. She represents a broad range of corporate and individual clients in connection with temporary (non-immigrant) visas and both employment and family-based permanent (immigrant) visa petitions.

She also provides advice relating to complex issues of waivers on grounds of inadmissibility, maintenance, and abandonment of permanent resident status, and renunciation (expatriation) of U.S. citizenship.

Publications

Kehrela Hodkinson's
Publications

Kehrela Hodkinson quoted in Danish newspaper, Jyllands-Posten, regarding potential issues of inadmissibility resulting from arrest of professional golfer, Thobjorn Olesen.

August 6th, 2019

Discussion Leader on Panel entitled Consular Processing: What Things go Wrong”, American Immigration Lawyers Association, Orlando, FL

June 1st, 2019

Renunciation of US Citizenship – Why Would a Client “Give It All Up”.

April 15th, 2019

Invited to serve on the Editorial Board of the AILA Law Journal which will cover current and pragmatic topics related to the rapidly changing immigration law landscape and will be produced biannually, commencing 2019.

December 1st, 2018

Discussion Leader for an American Lawyers Association teleconference on the topic of visa processing in London.

December 1st, 2018

Kehrela Hodkinson, US immigration lawyer and founder of Hodkinson Law Group, told The Independent any presidential order over birthright citizenship would face “many constitutional challenges”, including requests for an injunction against implementation, much like what happened with Mr Trump’s initial travel ban on a number of Muslim-majority countries.

October 30th, 2018

Interviewed by The Independent, a UK newspaper, regarding the immigrant visa category by which Melania Trump’s parents obtained their permanent resident status.

February 22nd, 2018

A chapter The Waivers Book, 2nd Edition, published by American Immigration Lawyers Association

December 1st, 2016
Memberships and affiliations

Kehrela Hodkinson's
Memberships and affiliations

ABIL (Alliance of Business Immigration Lawyers)

Founding member of ABIL, which is comprised of 19 of the top U.S. business immigration law firms, has over 140 attorneys devoted to business immigration in 21 major U.S. cities, plus Cologne, Hong Kong, London, Monterrey, Mumbai, Shanghai, Tokyo, Toronto, and Vancouver. Founding member and first Chair of Rome District Chapter of American Immigration Lawyers Association.


Multiple leadership roles in the American Immigration Lawyers Association

  • 2011-2012 B-1 in lieu of H-1 Task Force
  • 2011-2012 Department of State Liaison Committee
  • 2011-2012 Military Assistance Program Task Force
  • 2011-2012 Rome District Chapter Pro Bono Committee Chair
  • 2010-2011 Department of State Liaison Committee
  • 2010-2011 Distance Learning Committee
  • 2010-2011 Rome District Chapter Pro Bono Committee Chair
  • 2009-2010 Midyear Conference Committee
  • 2009-2010 Department of State Liaison Committee
  • 2008-2009 Chair Rome District Chapter
  • 2007-2008 Interim Chair Rome District Chapter

American Bar Association


International Bar Association


American Women Lawyers in London


Society of English and American Lawyers


Nominated by peers to the International Who’s Who of Business Immigration Lawyers

Sharon L. Noble

Of Counsel

Sharon Noble has exclusively practiced U.S. immigration law since 1996, concentrating on business-related immigration matters with an emphasis on both non-immigrant visa petitions for corporate employees, individual investors and entrepreneurs as well as employment based immigrant petitions, extraordinary ability petitions and outstanding researcher petitions. Ms. Noble worked with Ms. Hodkinson in London for seven years before returning to the United States in 2003. She is now Of Counsel to Hodkinson Law Group, working remotely from California. Prior to 1996, Ms. Noble practiced corporate real estate and health care law in Los Angeles. With Ms. Noble’s prior corporate experience, she possesses a strong business background and exceptional writing skills, both of which have proven invaluable to her immigration practice.

Publications

Sharon L. Noble's
Publications

A chapter The Waivers Book, 2nd Edition, published by American Immigration Lawyers Association

December 1st, 2016

Tasha N. Cripe

Of Counsel

Tasha Cripe continues to assist our clients in the preparation and filing of non-immigrant and immigrant visa petitions and applications of waivers of grounds of inadmissibility. She is a member of the Illinois State Bar and is actively involved in The American Immigration Lawyers Association Military Assistance Program.

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