Visa Bulletin for April 2018 – EB-1 for China and India Retrogression

The U.S. Department of State (DOS) released the April 2018 Visa Bulletin and has imposed a cutoff to EB-1 China and India. The cutoff date (final action date) for both EB-1 China and India is January 1, 2012. On a positive note, EB-2 and EB-3 China advanced several months to June 1, 2015 and April 1, 2007, respectively, and EB-3 India will advance significantly to February 1, 2008.

Following the DOS’s publication of the visa bulletin, the USCIS announced that for purposes of filing adjustment of status applications employment-based cases must use the Final Action Dates and family-based cases must use the Filing Action Dates.

Reminder: H-1B FY2019 Cap Deadline Approaching

As a reminder, USCIS will begin accepting H-1B cap petitions for the 2019 Fiscal Year (FY) on April 2, 2018 (April 1 is a Sunday). A pre-requisite to filing an H-1B petition is for an employer to obtain a certified Labor Condition Application (LCA) from the US Department of Labor. The LCA can take 7-10 days to be approved. Therefore if you are seeking to file a cap-subject H-1B petition to employ a foreign national in a specialty occupation you must initiate the process immediately. As in prior years, if the USCIS receives more than enough petitions to meet the standard and advanced-degree quotas during the first five business days of the filing period, it will conduct a random computerized lottery to select cases for the Cap. The system first selects advance-degree petitions to fill the 20,000 cap, and then places all unselected cases with the remaining Cap (regular) cases for the second lottery to select petitions for the 65,000 Cap.

USCIS Will Temporarily Suspend Premium Processing for FY2019 H-1B Cap Petitions

USCIS will temporarily suspend premium processing for all FY 2019 cap-subject petitions, including petitions seeking an exemption for individuals with a U.S. master’s degree or higher. This suspension is expected to last until September 10, 2018. During this time, USCIS will continue to accept premium processing requests for H-1B petitions that are not subject to the FY2019 cap. During the temporary suspension, USCIS will reject any Form I-907, Request for Premium Processing Service, filed with a FY2019 cap-subject H-1B petition. If a petitioner submits one combined check for the filing fees for Form I-907 and Form I-129, Petition for a Nonimmigrant Worker, USCIS will reject both forms.

USCIS will notify the public before resuming premium processing for cap-subject H-1B petitions. Once premium processing resumes, petitioners may file a Form I-907 for FY2019 cap-subject H-1B petitions that remain pending. You may subscribe to email updates on the H-1B FY 2019 Cap Season webpage.

Requesting Expedited Processing: While premium processing is suspended, a petitioner may submit a request to expedite an FY 2019 cap-subject H-1B petition if it meets the criteria on the Expedite Criteria webpage. It is the petitioner’s responsibility to demonstrate that they meet at least one of the expedite criteria, and to submit documentary evidence to support their expedite request.

TPS Extended for Syria

On March 5, 2018, the Department of Homeland Security announced that it was extending the temporary protected status (TPS) designation for Syria for 18 months through September 30, 2019. The extension allows currently eligible beneficiaries to retain their TPS status and to extend their employment authorization for those who timely file their re-registration applications. The employment authorization of TPS applicants who timely file their applications will be granted an automatic 180-day extension on the EAD cards through September 27, 2018. The 60-day re-registration period runs from March 5, 2018 through May 4, 2018.

California’s Sanctuary Laws Challenged by the Trump Administration

On March 6, 2018, the Department of Justice (DOJ) filed a lawsuit against the state of California challenging three of its laws relating to immigration enforcement. The DOJ claims that that these sanctuary laws are in violation of the Supremacy Clause making it difficult for federal immigration officers to execute their immigration enforcement in California. The three laws that are being challenged are the: (1) Immigration Worker Protection Act; (2) California Values Act; and (3) Assembly Bill 103. These laws regulate private employer cooperation with immigration enforcement, limit state and local law enforcement communication with federal immigration officers, and regulate the investigation and review of immigration enforcement efforts.

In response to The Trump Administration’s promise to increase deportations and enforce immigration violations, California implemented these laws to increase public safety and build trust between the immigration community and law enforcement. In response to the lawsuit, California’s Attorney General Xavier Becerra explained that the US Constitution gives states the right to determine how to enforce public safety, and with these three laws California was enacting public safety laws and not immigration laws. (The United States of America v. The State of California, et. al. No. 18-264.)

Supreme Court Holds That INA §§235(b), 236(a), and 236(c) Do Not Entitle Noncitizens in Prolonged Immigration Detention to Bond Hearings

The Supreme Court reversed the judgment of the Ninth Circuit Court of Appeals and remanded, holding that INA §§235(b), 236(a), and 236(c) do not give detained non-citizens the right to periodic bond hearings during the course of their detention. The Court directed the Ninth Circuit to consider on remand the respondents’ constitutional arguments, which the Ninth Circuit did not previously consider. (Jennings v. Rodriguez, 2/27/18).