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President Trump issued another Presidential Proclamation as of March 11, 2020 restricting the entry of certain individuals who are attempting to enter the United States and who have been in any of the 26 Schengen countries within 14 days of their attempt to enter. This proclamation adds to the prior two proclamations that restrict entry for those who have been in the People’s Republic of China (excluding Hong Kong and Macau) and Iran. Notably, the UK and Ireland are not included.

Certain exceptions to the travel restrictions include the following:

• U.S. Citizens and Lawful Permanent Residents of the United States (green card holders);
• Spouses of U.S. Citizens and Lawful Permanent Residents;
• Parents/Legal Guardians of U.S. Citizens and Lawful Permanent Residents, so long as the U.S. Citizen or Legal Permanent Resident is unmarried and under the age of 21;
• Sibling of U.S. Citizens and Lawful Permanent Residents, so long as both are under the age of 21;
• Child, foster child, or ward of U.S. Citizens and Lawful Permanent Residents or prospective adoptee;
• Members of the U.S. Armed Forces and spouses and children of members of the U.S. Armed Forces;
• Individuals traveling at the invitation of the U.S. Government for a purpose related to containment or mitigation of the virus;
• Certain individuals entering the U.S. for government business, law enforcement objectives, or in the national interest;
• Individuals whose entry would not pose a significant risk of introducing, transmitting, or spreading the virus, as determined by the Secretary of Health and Human Services, through the CDC Director or his designee.

Clark Lau LLC is monitoring the above and related developments and how this will impact those seeking admission to the U.S. and those who are here for a limited duration, such as those in ESTA and tourist visas.

The above is provided for educational purposes only and does not constitute legal advice. Please contact your Clark Lau LLC attorney to see whether the above impacts your circumstances.

See the link below for the full text:

https://www.whitehouse.gov/presidential-actions/proclamation-suspension-entry-immigrants-nonimmigrants-certain-additional-persons-pose-risk-transmitting-2019-novel-coronavirus/

While there are 65,000 H-1B numbers available each year, and an additional 20,000 for those with at least a U.S. Master’s degree, there has not been enough to meet market demands. As a result, employers have had to plan ahead. In fact, in the past several years, employers have had to prepare complete petitions, along with supporting documentation, and file them as far as six months in advance to have a chance at a lottery system that determines whether their petitions would even be reviewed. The chance of success has hovered around 30-40%. (This refers to the success rate of being chosen for processing, not the actual success rate of the petition.)

This year, the United States Citizenship and Immigration Services (USCIS) announced on December 6, 2019 that they will be employing a new electronic registration system which will require employers first to register their cases between March 1, 2020 and March 20, 2020 noon EST. (This avoids having to prepare a complete filing prior to knowing whether the petition would even be reviewed by an officer.) Once the registration period is closed, USCIS will conduct a lottery to determine which cases will have the opportunity to proceed with filing an actual petition. This is the first time that USCIS is employing this system and they have been releasing information about the process piecemeal over the course of the last few weeks. To date, the actual relevant components of the system are not fully live yet. Below are some key dates for your reference.

February 24: Petitioners will be able to create H-1B registrant accounts. We will provide you with more detailed instructions regarding the creation of such accounts. Please note that each employer (as designated by separate Federal Employer Identification Numbers) must create a separate account.

In the meantime, attorneys will also be able to create separate accounts.

March 1: H-1B registration period opens at noon EST.

During the registration period, attorneys will be able to help prepare draft registrations of all of your employees. Once the drafts are complete, attorneys will be able to share these with you via your H-1B registrant account. You will have the opportunity to review and “sign off” on the registration list before the attorneys submit the official registration. Please note that without your “sign off” attorneys will not be able to register your cases. Therefore, please ensure that you have email access during this period.

March 20: H-1B registration period closes at noon EST. Please note that there is no difference whether one registers on the first day or last day of the registration period. Our firm has elected to wait a few days before registering cases to avoid any technical problems that may arise during the first few days.

March 31: Date by which USCIS intends to notify selected registrants.

April 1: The earliest date that FY 2021 H-1B cap-subject petitions may be filed. Employers will have a 90-day period to file a complete H-1B petition.

Stay tuned for more updates.

USCIS announced this past week that they have not only received more petitions than there are available H-1B visa numbers (85,000) but they have also completed their lottery selection process. For those petitioners who have selected to use the Premium Processing option, which is an additional $1410 in government filing fees, they are already receiving notification as to whether their petitions have been selected in the lottery for substantive processing. For those who have not selected Premium Processing, or for those petitions not available for Premium Processing, it is still a waiting game. (Premium Processing is an option for employers to pay an additional filing fee for USCIS to generate a response, whether a decision or a request for more information, within 15 days of the receipt of the petition. Under the H-1B lottery process, the 15-day clock does not technically start upon receipt of the petition due to the high volume of petitions USCIS receives during the first week of April.)



In prior communications, we announced that the H-1B demand had decreased. This was incorrect. The numbers have actually been fluctuating. In FY2017 (April 2016), employers filed 236,000 petitions. In FY2018, employers filed 199,000 petitions. In FY2019, employers file 190,098 petitions. This April, for FY2020, employers file 201,000 petitions. Regardless, these numbers show a demand much greater than the allotted 85,000 that are available.



The above has been provided for informational purposes only.

USCIS just announced that they received 201,000 H-1B petitions at the beginning of this month which exceeds the number of H-1B visa numbers available for Fiscal Year 2020. This is no surprise given that employers have been filing H-1B petitions that have exceeded the number available each year for many years now. What is interesting is that the actual number of H-1B petitions that have been filed with USCIS continues to decrease. There were 233,000 last year and 236,000 the year before.



Despite the decrease in petition numbers, there still is not enough H-1B visa numbers to meet the demand. For this reason, USCIS continues to use an established lottery system to select 65,000 petitions for review, and then another 20,000 petitions for those remaining where the beneficiary has at least a US Master's degree. Please note that while the lottery system has been in place for some time now, the order of selection this year is new. This order gives preference to those petitions with beneficiaries who have at least a US Master's degree. Starting next year, a completely new process, which will include an electronic pre-registration system, will come into play. In the meantime, over the next few weeks, employers and employees alike wait to see whether their petitions have been selected for processing. The above has been provided for informational purposes only.

Employers filing H-1B petitions for individuals who have never had H-1B status have had to wait for the availability of a visa number, unless the employer is exempt. (Exempt employers include institutions of higher education, non-profit research organizations, and government research organizations.) Over the last few years, there has been a shortage of H-1B visa numbers to meet the demands. As a result, employers have had to participate in a lottery process that started April 1 each year (six months before the first day of each fiscal year October 1) to attempt to secure a number.



Earlier this month, USCIS published proposed regulations regarding an electronic registration process for the H-1B lottery. Right now, we are in a 30-day comment period that will end the first week of January 2019. USCIS is hoping that they will be able to implement the registration process for Fiscal Year 2020, that is, for the filing period that starts April 1, 2019. Below are some highlights.

• All H-1B petitions to be entered into the lottery will be subject to an electronic registration process.
• USCIS will announce the registration period at least 30 days in advance of the start of the process and the process will be at least 14 days long.
• The intention is to start the registration process in advance of April 1, 2019.
• There is no fee proposed for the registration process.
• In order to participate in the registration process, an employer must provide the following:
  
  
  • Employer's name, Federal Employer Identification Number (FEIN), and Employer's mailing address;
  • Employer's authorized representative's name, job title, and contact information (telephone number and email address);
  • Beneficiary's full name, date of birth, country of birth, country of citizenship, gender, and passport number;
  • Whether the Beneficiary has obtained at least a Master's degree or higher from an institution of higher education in the United States;
  • Employer's attorney or representative; and
  • Possible additional information to be determined by USCIS.
• Employers will be able to register each beneficiary only once and must attest to employing the individual in connection with a bona fide job offer if selected in the process.
• If one is not selected in the process, one will have to re-register in the following year. No preference will be given to those who were registered previously.
• USCIS will consider all of the petitions (regardless of whether the individual has a U.S. master's degree or higher) and select what they believe will be enough to meet the initial 65,000 H-1B visa allotment. Then, USCIS will consider those remaining petitions where the beneficiary has a U.S. master's degree or higher, and conduct a lottery for enough petitions to meet the 20,000 allotment. This is different from the current order and the stated goal is to ensure that more H-1Bs are given to those who have at least a U.S. master's degree or higher.
• Employers will be notified of selection via an email and of where and when to file the actual petition.
• If selected USCIS is proposing to provide employers with a 60-day window within which to file the H-1B petition. USCIS may stagger the filing windows to accommodate its workforce. USCIS believes that this 60-day window will be enough time for an employer to file a Labor Condition Application with the US Department of Labor and then file the H-1B petition.

As we are still in a comment period, any of the above proposals may change. Please stay tuned and we will keep you updated. The above has been provided for educational purposes only.

Teaders of the U.S., Canada, and Mexico have just signed off on the renegotiated version of the North American Free Trade Agreement (NAFTA), now named the United States-Mexico-Canada Agreement (USMCA), while attending the G20 Summit today. While the respective governments will have to ratify the agreement, the burning question from the immigration standpoint is how will this impact the nonimmigrant TN visa classification which allows citizens of Canada and Mexico to enter the US to work for US employers under a prescribed list of occupations.



Based on what we see, other than updating some headings and terms, the answer is that there will be little impact. The nonimmigrant option remains and the occupational classifications remain the same, with the addition to the list of "Actuary" and "Plant Pathologist" which was approved back in 2003.



This information was provided for educational purposes; stay tuned for more.

The H-1B visa classification is one of the most popular work-authorized temporary work visas available. H-1Bs are available where there is a U.S. employer; where the position offered is a "specialty occupation," that is, one cannot perform the duties without having a degree in a specific field of study; where the individual has the degree (or equivalent work experience) in that specific field; and where the employer is willing to pay a required wage. For now, there is generally no labor market test. The H-1B is so popular that individuals not already in H-1B status must have their employers file a petition in a lottery each spring for a chance at obtaining an H-1B number. There are only 20,000 numbers available each year for those with advanced U.S. degrees and 65,000 for all others. About 30-35% of those trying for a number are selected for processing, and there is no guarantee that the government would approve the petitions based on their merits due to shifting adjudicatory standards under the current administration.



There have been talks over the years regarding changing the H-1B system given the demand for them. One of the more talked about options is to have a pre-registration system for employers so that employers would not have to complete the whole H-1B filing process, only to find out through a lottery system that their petitions were not chosen for processing. This fall, when the Department of Homeland Security (DHS) provided an overview of some of the upcoming regulatory changes, it indicated the following:



The Department of Homeland Security proposes to amend its regulations governing petitions filed on behalf of H-1B beneficiaries who may be counted under section 214(g)(1)(A) of the Immigration and Nationality Act (INA) ("H-1B regular cap") or under section 214(g)(5)(C) of the INA ("H-1B master's cap"). This rule proposes to establish an electronic registration program for petitions subject to numerical limitations for the H-1B nonimmigrant classification. This action is being considered because the demand for H-1B specialty occupation workers by U.S. employers has often exceeded the numerical limitation. This rule is intended to allow U.S. Citizenship and Immigration Services (USCIS) to more efficiently manage the intake and selection process for these H-1B petitions.



While the DHS had indicated that they would be publishing the new rule in October 2018 for the public to comment, and so that there would be enough time to implement it for the upcoming H-1B lottery (April 1, 2019), to date, nothing has been published yet. What is of interest, however, is that on November 16, during a public meeting, USCIS Director Francis Cissna said that DHS is still aiming to publish a rule in time for this upcoming H-1B lottery. Details of this rule have not been released yet, but our sources, the American Immigration Lawyers Association (AILA) believes that the rule will mirror what was proposed back in 2011 whereby an employer would undergo an electronic registration process that would take about 30-minutes, then USCIS would select the number of registrations that it believes would use up the allotment of H-1B numbers, and then notify the employer that it may proceed with preparing and filing both steps of the H-1B process (the ETA Form 9035 Labor Condition Application and the Form I-129 Petition for Nonimmigrant Worker).



We will keep a close watch on this developing story. In the meantime, regardless of the actual procedure, we do encourage all employers to look ahead and consider whether any of their current employees and any upcoming hires will need an H-1B number. These typically are those who are not currently in H-1B status, especially recent international student graduates (F-1s).



The above information was provided for educational purposes only.

Clark Lau LLC is pleased to announce that Managing Partner Vince Lau has been named by Marquis' Who's Who as a Top Lawyer. According to Vince, "What makes one a 'Top Lawyer' is the strong support and backing he receives from the team at work."



http://www.24-7pressrelease.com/press-release-service/457729

Vince Lau joins government speakers Bill Rabung (Director of Operations of the Department of Labor's Office of Foreign Labor Certification) and Judge Paul Almanza (Associate Chief Administrative Judge of the Department of Labor's Office of Administrative Law Judges) at AILA's Annual Immigration Conference to discuss latest updates in connection with employment-based green cards.

USCIS announced today that not only has the H-1b cap been reached but that it has completed both its US Master's degree H-1b cap and regular H-1b cap lotteries. They will now start processing the selected petitions and will be returning those that have not been chosen.



Given that USCIS has suspended premium processing for H-1b cap cases, it may take a while before employers will receive further news about a particular petition.



In the meantime, no official processing time has been issued. USCIS did announce however they received 190,098 petitions this year for the 85,000 available visas. This is down from the 199,000 filed last year.



If any H-1b cap petition beneficiary needs to do any international travel, please do not hesitate to contact us first to determine if there is any impact on the filed H-1b petition.



Please stay tuned!



(This information was posted for educational purposes only.)