Recap of H-1B Recent Developments

There has been a flurry of news surrounding the H-1B program in recent months.  As the dust begins to settle after cap season, let’s check in on the current state of affairs and offer some insights.

Premium Processing, Pause Continues

USCIS unexpectedly announced the temporary suspension of premium processing for all H-1B cases on March 3rd.  The suspension went into effect on April 3rd; impacting all cap subject applications.  Rumors recently circulated that premium processing was going to be resumed in May, but no official statement has been made.  It may be a long, hot summer of waiting for premium H-1B processing to be reinstated.

Until then, expedite requests can be made on an individual basis, where circumstances warrant.  Ellis Porter attorneys have successfully requested expedited handling.   Numerous requests were granted in less than four weeks for resident physicians beginning training programs. Other approved expedite requests include those for Conrad physicians working in underserved areas.

It is likely that routine travel needs or driver's license issues will not meet expedited review criteria.  Inquire with Ellis Porter to evaluate your expedite eligibility.  

Case Transfers

USCIS periodically transfers cases between service centers to promote an even distribution of workload and improve processing times.  A notice is generated to inform the parties when a case is transferred, but case tracking information remains the same. 

On June 1st, USCIS transferred some extension of stay (EOS) based H-1Bs from the Nebraska Service Center to the California Service Center.  Also, some EOS cases with accompanying Form I-765, Application for Employment Authorization, filed together with Form I-539, Application to Extend/Change Nonimmigrant Status, for petitioners requesting an Extension of Stay (EOS) for an H-1B worker to continue with the same employer were also transferred to California.  Those selected will receive transfer notices and can hope to see improved processing times.  Premium Processing will be reevaluated in the event that case processing is brought to acceptable levels.

H4/EAD Litigation

Employment authorization for H4 visa holders was an important feature of regulations promulgated by the Obama administration in 2015.  An estimated 180,000 spouses are eligible for H4/EAD.  Since many recipients use the cards to establish small businesses, it is widely viewed as a job creation tool.

The H4/EAD card is now threatened by a lawsuit filed by Save Jobs USA.  Save Jobs USA alleges that H4/EAD promotes an unfair displacement of American workers.  The group states that DHS exceeded its authority when implementing the employment authorization.  It now appears that the agency, under the Trump administration, may not defend the rule and has repeated requested an abeyance of the case.

DHS was due to file an update on the progress of its policy assessment in early June. No filing has been yet recorded.  It’s possible that the administration is planning to revoke the H4 EAD rule through an executive order followed by a proposed rule.  Such a move would avoid loss in the courts.  The future of the H4 EAD program remains murky and likely to shift in coming months.

Changes in the Air

In response to a March inquiry from Senator Chuck Grassley, the U.S. Department of Homeland Security confirmed that it’s planning to issue new rules and guidance related to the H-1B visa program.  These changes are expected to be consistent with the President’s recent executive order on the issue.  The lawmaker and several of his colleagues wrote to the DHS, asking what was being done to address abuses.

DHS responded partially noting that its “hands were tied” under current regulations and confirmed that USCIS is planning to issue new, stricter, H-1B regulations.  It will also release an updated H-1B guidance section for the agency’s policy manual.

In leadership news, the Judiciary Committee is set today to further its review of Lee Francis Cissna.  Mr. Cissna is President Trump’s nominee to be Director of the USCIS.  Seen by many as having restrictionist leanings, Cissna’s nomination supports the administration’s desire to reform the H-1B program.  While previously assisting Senator Grassley, Cissna was notably involved in drafting the H-1B and L-1 Visa Reform Act of 2015.  That bill would have required employers to conduct recruitment efforts prior to H-1B utilization.  Cissna's recent statements that fines for H-1B visa violations were "probably too low," coupled with his concern over US worker displacement indicates that, if confirmed, he would seek to increase scrutiny and decrease H-1B visa usage.

We know that change in any new administration is inevitable.  Rely on Ellis Porter to provide adaptive legal solutions as the future of US immigration policy takes shape.