E-1/E-2 Visa Reciprocity Reduced for French Nationals

The U.S. Department of State (DOS) had previously announced that the validity period of E-1 and E-2 visas for French nationals would be reduced from 60 months to 15 months effective August 29, 2019. The effective date of the reciprocity change has been postponed until September 26, 2019. The US establishes different visa validity periods depending on the nationality of the visa applicant. The Immigration and Nationality Act requires the DOS to set country-specific visa policies on a reciprocal basis. Visa validity periods are based on each country’s treatment of similar classes of U.S. visitors to its territory. If a country imposes restrictive visa requirements on U.S. citizens, the U.S. reciprocates with more restrictive requirements on that country’s citizens.

On August 28, 2019, USCIS issued new policy guidance to address requirements for ‘residence’ in statutory provisions related to citizenship, and to rescind previous guidance regarding children of U.S. government employees and members of the U.S. armed forces employed or stationed outside the United States. USCIS has updated its Policy Manual to clarify the distinction between residence and physical presence in the United States and to clarify that short visits to the United States do not establish residence. It also establishes that children of U.S. government employees and U.S. armed forces members residing outside the United States are no longer considered to be “residing in the United States” for purposes of acquiring citizenship under INA 320. This policy will become effective October 29, 2019.

OFLC’s Schedule for FLAG System and iCERT Deactivation for LCAs

On June 4, 2019, The Office of Foreign Labor Certification (OFLC) announced the roll-out of the electronic filing of Prevailing Wage Requests in the Foreign Labor Application Gateway (FLAG) system. FLAG was developed to replace OFLC’s current iCERT system in an effort to improve customer service and modernize the administration of the foreign labor certification program.

On September 5, 2019, OFLC announced important dates with regard to the implementation of the new FLAG system (and the phase-out of the iCERT system) for the LCA programs covering H-1B, H-1B1 and E-3 visa classifications. Starting September 16, 2019, the FLAG system will be enabled to commence drafting LCA applications. However, LCA applications cannot be submitted through FLAG until 12 noon on October 1, 2019. The iCERT system will only accept LCA submissions through 11:59 am on October 1, 2019. The ability to submit LCAs through iCERT will be deactivated as of 12 noon on October 1, 2019. OFC will continue to process all LCAs submitted through iCERT and the iCERT portal can be accessed to check on the status of applications.

Under the “Buy American, Hire American” Executive Order, the goal is for companies to hire only the best and the brightest for visa sponsorship, mostly H-1B visa holders. The Department of Labor (DOL), the governmental agency that handles the public disclosure information for employers looking to sponsor H-1B employees, has always released information for Labor Condition Applications (LCAs) in conjunction with the H-1B petition. The LCA has traditionally disclosed information including employer name, address, salary wage range, and worksite location, among other attestations the employer must make to meet labor and immigration laws. In November 2018, the DOL changed the format of the LCA to include those employers that place employees at a third-party client site, many of which petition for their own H-1B workers. Due to the new format of the LCA, information is now publicly available regarding where consulting companies send their employees. This move has been seen as targeting staffing/consulting companies, with policy memos issued to ensure that these staffing and consulting companies adhere to the strictest standards.

DHS Is Seeking Even More Information From Foreign Nationals

The Department of Homeland Security (DHS) is seeking to collect five years of social media history from applicants for certain immigration benefits, including Visa Waiver Program travelers and adjustment of status and naturalization applicants. If this proposal is implemented it would also add social media questions to a range of USCIS and CBP forms and systems. DHS officials already use publicly available social media information to determine eligibility for immigrant benefits. Any social media profiles, postings, or details that appear inconsistent with eligibility for an immigration benefit could result in delayed adjudication or denial of the benefit. Thus far, employment based petitions such as Form 1-129 and I-140 are not included in the proposed DHS revision. Those affected include:

  • ESTA (Electronic System for Travel Authorization) and Form I-94W, Nonimmigrant Visa Waiver Arrival/Departure Record for Visa Waiver Program travelers;
  • EVUS (Electronic Visa Update System) for Chinese nationals traveling to the U.S. as business visitors or tourists;
  • Form I-131, Application for Travel Document, used to apply for advance parole and reentry permits, among other benefits;
  • Form I-485, Application to Register Permanent Residence or Adjust Status for those applying for a green card through USCIS;
  • Form I-751, Petition to Remove the Conditions on Permanent Residence for certain marriage-based green card beneficiaries;
  • Form I-829, Petition by Entrepreneur to Remove Conditions on Permanent Resident Status for EB-5 green card beneficiaries; and
  • Form N-400 naturalization applications are included.

DHS Proposes H-1B Cap Registration Fee

DHS is proposing to impose a fee on employers who file H-1B cap registrations under the forthcoming online registration system. Employers would be required to pay a $10 fee per registration. Employers seeking to file H-1B cap cases will first be required to register online in order to enter the H-1B lottery. Employers will then be permitted to file full H-1B petitions only for registrations that are selected in the H-1B lottery, which they can file USCIS during a 90-day window. A regulation announcing the new system was finalized in early 2019 but implementation was postponed so that the system could be developed and tested.

The $10 registration fee would be required for each H-1B cap registration at the time of submission. Fee payments are expected to be made through Pay.gov, the federal government’s online fee system.

According to DHS, the primary purpose of the fee is to offset the cost of the H-1B cap registration system, but it is also being imposed to reduce the filing of “frivolous” H-1B cap registrations. DHS confirms that it intends to monitor the registration system for employers who submit a large number of H-1B registrations, but file selected petitions at a significantly lower rate.

State Department Issues Reminder About Use of Passport Books/Cards Under ‘Real ID’

The Department of State recently issued a reminder about upcoming changes to domestic air travel documentation requirements under the Real ID Act, which requires all state-issued identification documents to meet a set of minimum security standards. IDs that do not meet these standards will not be accepted for federal purposes, including as ID for boarding domestic flights. State IDs, such as driver’s licenses, may need updating.

Federal Courts Cannot Review Denials of NIWs

A Ninth Circuit Panel rules that federal courts may not review USCIS denials of National Interest Waivers (NIWs). Affirming the District Court’s dismissal for lack of subject-matter jurisdiction of an Iranian engineer’s suit challenging the denial of his petition for a NIW related to his application for a work visa, a panel of the U.S. Court of Appeals for the Ninth Circuit held that 8 U.S.C. § 1252(a)(2)(B)(ii) strips the federal courts of jurisdiction to review NIW denials.