USCIS Announces Fiscal Year 2020 H-1B Cap Season Start Date, Updates, and Changes

This afternoon, 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. USCIS is also reminding petitioners of its new H-1B cap selection process. These new efforts are all part of President Trump’s Buy American and Hire American executive order designed to protect U.S. workers.

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 this date. Petitioners are reminded to follow all statutory and regulatory requirements as they prepare petitions to avoid delays in processing and possible requests for evidence.

Premium Processing for FY 2020 Cap-Subject Petitions

During the FY 2020 cap season, USCIS will offer premium processing in a two-phased approach. This way, USCIS can best manage the premium processing requests without fully suspending it as has been the case in previous years. The first phase will include FY 2020 cap-subject H-1B petitions requesting a change of status and the second phase will include all other FY 2020 cap-subject petitions.

Beginning April 1, FY 2020 cap-subject H-1B petitioners requesting a change of status on Form I-129 may request premium processing by concurrently filing Form I-907. However, to prioritize data entry for cap-subject H-1B petitions, USCIS will not begin premium processing for these petitions immediately. USCIS will begin premium processing for these petitions no later than May 20, 2019, and USCIS will notify the public before premium processing begins. If a petitioner does not file Form I-907 concurrently with a FY 2020H-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.   

Premium processing for all other FY 2020 cap-subject H-1B petitions will not begin until at least June 2019. Cap-subject petitioners not requesting a change of status may not submit their premium processing request concurrently with their H-1B petition. These petitioners will be eligible to upgrade to premium processing by filing Form I-907 once premium processing begins for this group. USCIS 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.

New H-1B Data Hub

USCIS has also announced the new H-1B Employer Data Hub that will be available on uscis.gov on April 1. The data hub is part of USCIS’ continued effort to increase the transparency of the H-1B program by allowing the public to search for H-1B petitioners by fiscal year, NAICS industry code, company name, city, state, or zip code. This will allow the public to calculate approval and denial rates and to review which employers are using the H-1B program.

New H-1B Cap Selection Process

In January, DHS announced a final rule amending regulations governing cap-subject H-1B petitions, including those that may be eligible for the advanced degree exemption (read previous blog on that here). The final rule reverses the order by which USCIS selects H-1B petitions under the regular cap and the advanced degree exemption, which will be in effect for the FY 2020 cap season. This simple 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.

As a reminder, Congress has set a cap of 65,000 H-1B visas per fiscal year with an advanced degree exemption from the H-1B cap available for 20,000 beneficiaries who possess a U.S. master’s degree or higher from a U.S. institution of higher education. USCIS will monitor the number of petitions received and notify the public when the H-1B numerical allocations have been met.

We are in the full swing of H-1B cap season here at Berardi Immigration Law! If you or any of your employees have questions on these new changes or the H-1B visa category in general, please contact our office to set up a consultation with one of our attorneys today!

H-1B Notice Requirement Compliance by Electronic Posting

The United States Department of Labor (DOL) regulations require all H-1B employers to maintain a list of records regarding the H-1B workers that they employ. These records are referred to as the public access file, or PAF. The PAF includes documentation of such information as the rate of pay for the H-1B workers and a summary of the benefits offered to H-1B workers, among others. One important record that must be included in the PAF is documentation that certain notice requirements were satisfied. The DOL regulations demand that notice be given to U.S. workers on or within 30 days before the employer files the Labor Condition Application or LCA with the Department of Labor. The LCA is a form employers must file with the DOL Employment and Training Administration (ETA) on behalf of employees applying for a non-immigrant H-1B work visa.

The DOL provides specific guidance as to what information the notice must include. For instance, the notice must include the number of H-1B non-immigrants the employer is seeking to employ, the wages offered, the period of employment, the locations at which the H-1B nonimmigrants will be employed, as well as other information. While the H-1B employer has no control over the DOL regulations, he or she does have some options in deciding on a method to complete the notification. When there is a collective bargaining representative for the occupation in which the H-1B worker will be employed, the employer must provide notice to that representative. But otherwise, the employer may post notice of the necessary information at two conspicuous locations at the place of employment or provide the notice electronically to all workers at the place of employment for 10 days.

If given electronically, the notification must be readily available, as a practical matter, for all the employees who could be impacted. It goes without saying that this method will only get the job done if all the employees have practical computer access and have knowledge of the electronic platform upon which the notice is posted. The employer may use whatever form of communication it typically used to inform its workers about job-related news, such as job vacancies, perhaps through a posting on a home page or electronic bulletin board. Alternatively, an electronic, employer newsletter may be circulated, or more simply, emails may be sent out to all the affected employees. Posting on an unknown or little used electronic platform, however, will not suffice.

Third-party employers may face additional obstacles in properly notifying their workers. This is because third-party workers may not have access to the electronic resources used to notify the petitioner’s H-1B workers. Nonetheless, H-1B petitioners may provide electronic notification on their websites, as long as the affected workers at the third-party worksite are aware of the notice, can access it, and are able to determine which notice is applicable to them.

This may be a lot of information to process all at once on a topic that may be new to you. So, if you have any questions, or if you need additional clarification, please feel free to reach out to Berardi Immigration Law to set up a consultation with one of our experienced and knowledgeable attorneys today!

Lawful Status, Authorized Stay and Unlawful Presence: Related, But Unique Concepts You Need to Know

Lawful status, period of authorized stay, and unlawful presence are all terms that in the immigration context, refer to related, yet unique concepts. It is crucial to understand these concepts as they can have a major impact on the success of one’s immigration case or petition. 

Lawful Status

All U.S. citizens and U.S. nationals have lawful status in the United States. Lawful status is not restricted only to citizens and nationals. Foreign nationals who have been allowed to enter the U.S. on a temporary or permanent basis also enjoy lawful status within the U.S. For example, a legal permanent resident or a foreign national holding an H-1B visa will also have lawful status. For foreign nationals, lawful status is generally demonstrated by two prongs: a valid I-94 and acting within the confines of their issued visa. An unexpired I-94 shows that a foreign national has entered the U.S. legally through inspections. Additionally, a foreign national must adhere to the parameters of their visa. For example, with a few exceptions, a student in the U.S. on a F visa must not work to remain in lawful status. 

Authorized Period of Stay

While the term sounds interchangeable with lawful status, a period of authorized stay is distinct. Generally, this concept comes into play when a foreign national is exchanging or extending their nonimmigrant status or if they are adjusting their status in the U.S. If a foreign national is petitioning to change or extend their status before their current status expires, they will generally be authorized to remain in the U.S. even if their status expires while their petition is under review by U.S. Citizenship and Immigration Services (USCIS). The same pattern holds for a foreign national who is adjusting status. An applicant for adjustment of status who falls out of their current nonimmigrant status is permitted to remain in the U.S. while their petition is pending. This limbo period is what is referred to as an authorized period of stay. 

Unlawful Presence

If a foreign national does not have lawful status or authorized stay in the U.S., they are considered to be unlawfully present. In most cases, unlawful presence commences after a foreign national’s status expires and the foreign national does not have a petition in review. Foreign nationals who enter the U.S. without inspection or remain in the U.S. after a petition is denied are also unlawfully present. Unlawful presence accrues while the foreign national remains in the U.S., and there are severe consequences for significant periods of unlawful presence, which can include bars on reentry. Accruing unlawful presence can also hurt future petitions, so it is essential to understand this particular concept. 

Navigating the nuances of immigration law can be complicated and difficult on one’s own. Feel free to give Berardi Immigration Law a call to schedule a consultation if you have additional questions!

Renunciation of U.S. Citizenship

There are two requirements for a Canadian looking to renounce his or her U.S. citizenship. Such an individual must voluntarily, and with the intent to relinquish U.S. citizenship, execute the following steps: (1) appear in person before a U.S. consular or diplomatic officer, in Canada, at a U.S. Embassy or consulate; and (2) sign an oath of renunciation. This process requires the renouncing party to abandon all the rights and privileges associated with being a United States citizen. It is a very serious process requiring a very earnest decision that cannot be taken back. If approved by the consulate, renunciation is irrevocable.

For those individuals who are inclined toward renunciation of U.S. citizenship, the process is fairly straightforward. There are four basic steps to follow. The first step is to complete and return forms DS-4079, DS-4080 and DS-4081 to the Department of State. 

Secondly, the individual looking to renounce citizenship must contact a U.S. Consulate in Canada and request an appointment for an interview. The renouncing individual will need to bring copies of completed forms and scanned copies of documents to the appointment at the consulate, including a U.S. passport, evidence of U.S. citizenship, a valid Canadian passport, evidence of name changes, and other documentation as requested.

Thirdly, the individual looking to renounce citizenship will have to appear in person for the appointment and interview with a consular officer. The purpose of the interview is to make sure that the renunciation is, in fact, voluntary and with intent to relinquish U.S. citizenship. The officer will administer an “Oath of Renunciation of the Nationality of the United States” and a “Statement of Understanding.” If all the required paperwork is completed, it is possible that only one interview will be necessary, but that is not a guarantee. You may need to return for a second appointment. If approved for renunciation, a Certificate of Loss of Nationality will be issued.

Fourthly, and finally, the individual will need to pay a hefty government fee of $2,350.

Always keep in mind that renunciation is a big decision and there are many important considerations to take into account. Renunciation is irrevocable and cannot be canceled or set aside without a successful administrative review or judicial appeal. Renunciation is a very final path and should not be taken lightly. There are also significant tax considerations that need to be reviewed as part of evaluating renunciation. It’s recommended that anyone considering renunciation contact a tax professional who is familiar with renunciation matters to ensure they understand all implications. Renunciation also does not allow an individual to avoid criminal prosecution, or escape the repayment of financial obligations, including child support payments.

Finally, citizenship is a status that is personal to the individual. Parents may not renounce the citizenship of their minor children, and parents/legal guardians may not renounce the citizenship of individuals who lack sufficient capacity to do so. Minors who wish to renounce their U.S. citizenship must show that they are acting voluntarily, without undue influence from their parents, and that they fully understand the consequences. Children under 16 are presumed not to have the requisite maturity and knowing intent to relinquish citizenship.

If you are interested in renouncing your U.S. citizenship, be sure to contact Berardi Immigration Law to set up a consultation with one of our attorneys today!

Will a DWAI Conviction Bar Entry to Canada?

Recently, the rules surrounding DWIs, DUIs and DWAIs have changed in Canada, ushering in a new era of more aggressive enforcement. One of the most common questions our office receives is if a conviction for a DWAI will bar entry to Canada. The short answer is yes. A DWAI is treated the same way as a DUI at the Canadian border and there is no guarantee of being granted entry into the country.   

This fact usually sparks a lot of concern, and also a fair amount of confusion, as a DWAI and a DUI are very different offenses in American criminal law. While it is true that New York criminal law recognizes a significant distinction between DUIs and DWAIs, this is not the case from the Canadian perspective.

When an individual attempts to enter Canada, he or she is subject to Canadian law. In order to determine the seriousness of an offense on a criminal record when an individual attempts to enter the country, a Canadian Border Services Agency (CBSA) Officer will equate the offense to its closest Canadian counterpart. Under Canadian law, there is no offense called a DWAI — there is only a DUI. Consequently, a border official does a conversion of the DWAI offense to its closest equivalent in Canadian law, which is a DUI. As a result, when traveling to Canada, a DWAI will be treated as a DUI at the border.

The ultimate result is that for the first 10 years after completing the imposed sentence (ie., probation, fines, etc.), an individual with a DWAI is criminally inadmissible to Canada. Your only recourse is to apply for rehabilitation after five years with the Canadian Consulate in the United States.  

If you possess a DWI, DUI or DWAI on your record and would like to visit Canada, but believe you may be inadmissible, be sure to contact Berardi Immigration Law to set up a consultation with our Canadian immigration attorney today!

Whirlpool Rapids Bridge Closing Temporarily

On April 1, 2019, the Whirlpool Rapids Bridge, which spans the international border between Canada and the United States in Niagara Falls, will be temporarily closing. The closure is necessitated by the upcoming removal of the 1,700-foot Niagara Scenic Parkway viaduct above the bridge and customs plaza. The removal of the viaduct is part of a larger project for the renovation of the parkway along the Niagara River Gorge. The Niagara Falls Bridge Commission, which is overseeing the redesign project, is hopeful that the project will ultimately expand the waterfront, increase access to the Niagara River Gorge, and add new green space to the area.

The bridge is scheduled to be closed for 35 days until May 5, but these dates are tentative. Despite the closure, the Amtrak trains that run on a track on top of the bridge will continue to operate during the demolition. However, the closure of the bridge will certainly affect travel into, and out of, the United States because the NEXUS enrollment center at the bridge will also be closed temporarily. To help alleviate the loss of this entry point, the Lewiston-Queenston Bridge and the Rainbow Bridge will offer extended hours of NEXUS lane availability. The extended hours at the Lewiston-Queenston and Rainbow Bridge are as follows:

• For the Canada-bound Lewiston-Queenston Bridge: Monday and Sunday, 7 a.m. to 11 p.m.

• For the Canada-bound Rainbow Bridge: Monday and Sunday 7 a.m. to 11 p.m.

• For the U.S.-bound Lewiston-Queenston Bridge: Monday to Friday 6 a.m. to 8 a.m.

• For the U.S.-bound Rainbow Bridge: Monday and Sunday 7 a.m. to 11 p.m.

The project will not be cheap: it is estimated to cost New York State a total of $42 million. Still, renovations may be long overdue. The Whirlpool Rapids Bridge is the oldest of the three local, international bridges connecting Canada to the United States, having been originally opened in 1855. 

The closing of the bridge will certainly be an inconvenience to many, particularly our clients who frequently cross the border for work. At Berardi Immigration Law, we are available to address any questions or concerns that you have about the closing of the bridge and to help you with any problems that the closure may cause. 

Premium Processing for H-1B Petitions Submitted Before December 21, 2018 Resumes

In March of 2018, United States Citizenship and Immigration Services (USCIS) suspended premium processing for all H-1B petitions subject to the 2019 cap. The reason for the suspension was to provide an opportunity for the agency to work through a backlog of petitions and thereby reduce overall H-1B processing times. Many H-1Bs had gone unprocessed due to the high volume of petitions USCIS was receiving, especially premium processing requests. In August of 2018, USCIS extended its suspension of premium processing of cap-subject H-1B petitions even further. And, beginning September 11, 2018, USCIS expanded its temporary suspension to include certain additional H-1B petitions.

Things changed, however, on February 19, 2019: USCIS resumed premium processing for all H-1B petitions filed on or before December 21, 2018. The temporary suspension of premium processing remains in effect for H-1B petitions that were filed on or after December 22, 2018. Now that the suspension has been lifted, USCIS warns that petitioners seeking premium processing service may receive a transfer notice for a pending H-1B petition. In that case, the petitioner must submit the premium processing request, along with a copy of your transfer notice, to the service center now handling the petition. When an H-1B petitioner properly requests the agency’s premium processing service, USCIS guarantees a 15-day processing time. If no action is taken within the 15-calendar day processing time, USCIS refunds the petitioners premium processing service fees and continues with expedited processing of the petition.

USCIS plans to resume premium processing for the remaining categories of H-1B petitions as agency workload permits and will notify the public through its website (uscis.gov) when it has begun accepting processing for other categories of H-1B petitions. 

If you are interested in applying for H-1B status or learning more about this category, please contact Berardi Immigration Law to schedule a consultation with one of our attorneys today!