Hammond Neal Moore is happy to announce that we have opened a Dallas office and have added Julieta Grinffiel as our Managing attorney for the Dallas office. The Dallas office will handle a variety of employment and family based immigration cases. Julieta comes to us with almost ten (10) years of immigration experience. She has worked with companies ranging in size from start-ups to Fortune 100 companies. She is a Board Certified Specialist in immigration by the State of Texas.
As the H-1b lottery/cap filing season is underway, many employees that are working on OPT or STEM OPT will be taking advantage of the cap-gap rules which generally allow a person that was chosen in the H-1b lottery and who has timely filed a petition to continue working until Oct 1st even though their EAD card has expired. Last week, new cap-gap procedural rules were released by ICE changing how schools will update SEVIS records. If you are in charge of updating I-9’s in cap-gap scenarios, check this new rule out.
HNM attorneys Anita Smalley and Douglas Halpert have published an article on meeting the ability to pay requirement in the I-140 context.
As of April 1st, the Trump Non-immigrant Visa ban which applied to certain new visas including H and L categories was allowed to expire. If you were subject to the ban you may now seek a visa. If you were denied a visa due to the ban, you may now apply again, paying the fee again. If you applied but, were placed in administrative processing, you should reach out to your HNM attorney to discuss whether or not it is appropriate to wait for a decision or to re-file. The DOS has updated its information on the resumption of Consular activities.
The USCIS has announced today that the H-1b cap has been reached, the lottery conducted and the status of all registrations selected updated to show who was selected. The USCIS has not released the total number of registrations received but, anecdotally, it is being reported that less than 30% were selected indicating that the number of submissions was at least 250,000. Many practitioners, including myself, expected fewer filings than last year due to economic and COVID19 related concerns but, that does not appear to have been the case. It is expected that there will be a 2nd lottery held after the 90 day window expires and the USCIS knows how many registrations were selected for whom there was no filing made. If you were not chosen in the lottery, reach out to your HNM attorney who can discuss with you options that may be available.
Filings can begin on April 1st and there is a 90 day window for submissions. As of now, premium processing remains available for H-1b cap filings but, it is anticipated that it may be suspended at any time. We will update you as developments occur.
The Department of State has released the April Visa Bulletin and the Final Action Date chart continued to show steady forward movement across all categories and countries with established cut-off dates. All EB1 countries moved to current and both India and China EB2 and EB3 categories saw jumps of several months. The USCIS has yet to announce whether they will accept the Dates for Filing chart for 485’s in April. We will update this information as it becomes available. The big bonus contained in this month’s Visa Bulletin was the announcement of “Chats with Charlie” and a YouTube channel dedicated to the Visa Bulletin. We encourage you to check out this months Chat here. The good news this month was a prediction that in FY 2022, the DOS expects a total of 275,000 visas to be available for employment based side due to a mixture of the Visa Ban and COVID19. (see posts from 2-26-2021 and 9-24-2020 if you want more info. on this). In FY2021, there was a total of 262,000 visas available and the priority dates jumped multiple years at the beginning of the fiscal year on 10-1-2020. We expect the same this coming fall. There are a number of practical implications of this for both employers and international employees. For international employees, this means getting a green card much sooner than expected which is great news but, it also means finding a stable employment situation and staying where you are. For employers, this will mean less talent in the pool willing to move for the next 12-18 months. Expect to need to make adjustments to your immigration policies immediately.
Last week, the USCIS announced that it would entertain Motions to Re-open/reconsider (MTR’s) on denials of H-1b petitions that were based on one of three memos that have since been rescinded either by Federal Court order or by USCIS action. The relevant memos are: computer programmer memo from 3-31-2017; the employer-employee relationship memo dated 1-8-2010 (commonly referred to as the Neufeld memo); and, the contracts memo dated 2-22-2018. Although there are many denials based upon one of theses three memos, it is likely that this action will provide limited relief as a practical matter. Most denials resulted in new filings or the beneficiary moved onto another opportunity or left the U.S. and the opportunity as presented in the petition is unlikely to remain. The most common scenario that may warrant re-visiting is for US grads who may still be on some form of student employment i.e. STEM OPT or CPT and have a denial from a prior cap lottery filing. In spite of the limited applicability, we applaud the efforts of the Biden Administration to offer the opportunity to correct an error based upon the faulty and/or illegal policies enacted by both the Trump and Obama Administrations. If you have any cases that you think may warrant review, please reach out to your HNM attorney for assessment.
The USCIS has announced that they will no longer apply the Public Charge Rule introduced by the Trump Administration but, will revert back to the rule that was in effect prior to October of 2019. A summary of the rule that will now be applied can be found here. As a practical matter, this means that the 944 will not be required when filing I-485 applications and certain portions of the I-129 and I-539 need not to be completed. A summary of the changes can be found at the USCIS public charge web-page.
Hammond Neal Moore partner Douglas Halpert, who is retiring later this year has his career journey featured in the ABA. Check it out here.
The USCIS has recognized the difficulties that students are having as a result of delays in the issuance of I-765 receipts, the processing of 765 applications and the actual production of EAD cards so they have provided some relief. The steps taken by the USCIS will allow students to take full advantage of the 12 mo. period of OPT employment as opposed to being issued a shortened period due to processing delays. They also provided some refiling options following a lockbox rejection and other measures. You can review the new policy here.