Corporate Immigration Law News

In March 2019, USCIS published a revised Form I-539, Application to Extend/Change Nonimmigrant Status, and new Form I-539A, Supplemental Information for Application to Extend/Change Nonimmigrant Status, both with an edition date of 2/4/19. As of March 22, 2019, USCIS began accepting only the revised Form I-539 with an edition date of 2/4/19, and began rejecting any Form I-539 or Form I-539A with an edition date of 12/23/16, or earlier. The revised Form I-539 has significant changes, including the requirement that every applicant pay a biometrics fee and attend a biometrics appointment, regardless of age.

With the addition of this new biometric requirement for all I-539 applicants, on March 1, 2019, USCIS indicated during a stakeholder teleconference that USCIS may no longer continue its prior “courtesy practice” of offering premium processing adjudicative services to I-539 applications filed concurrently with a qualifying I-129 petition. Rather, I-539 applications are now being separated from the I-129 petition and follow the regular I-539 processing queue, as I-539 applications are no longer eligible for such premium processing “courtesy”.

According to USCIS, its longstanding courtesy practice of premium processing I-539 applications filed concurrently with a qualifying I-129 petition could not continue because it generally takes at least three weeks for the I-539 biometrics to be completed, such that USCIS cannot meet the 15-day premium processing timeframe. With that in mind, upgrades to premium processing the I-129 petition and the concurrently filed I-539 application post-filing (i.e.; after the I-539 biometrics are completed), will also not work. Given that USCIS has no obligation under the regulation to adjudicate the I-129 and I-539 concurrently, the I-539 application may take substantially longer to process than the principal I-129 petition. As of the date of his writing, USCIS is currently adjudicating I-539s in about 4 months. This, of course, will also serve to delay any I-765 applications seeking initial and renewal EADs for qualifying H4 spouses, which I-765 applications are taking approximately 5-6 months to be adjudicated at present.

Given the lengthy processing times, depending on timing, travel restrictions, visa processing issues, driver’s license renewals, and other related concerns, as an alternative to filing the I-539 application with USCIS, derivatives may resort to processing a nonimmigrant visa at a U.S. consulate abroad after the I-129 petition is approved, in order to avoid processing delays associated with the adjudication of Form I-539 by USCIS. In this way, an applicant may file an H-4 EAD (if applicable) immediately upon his/her re-entry into the United States as an H-4. Most importantly, early preparation of these cases is essential. Internally, we have increased the time in which our automatic reminders are sent to our HR/Legal team partners to 7-8 months prior to current expiration for your H-1B and L-1 employees (depending on each individual scenario), in an effort to give our clients more time to make internal decisions related to proceeding with H-1B/L-1 renewals, with the aim of filing petitions seeking extensions of stay at the earliest possible date we are permitted to file them under the regulation.

If you have any questions, please contact Anthony F. Siliato or Scott R. Malyk. And be sure to follow us on Twitter and LinkedIn.

The August Visa Bulletin was just released by the U.S. Department of State. Unfortunately, there are some notable retrogressions in employment-based (EB) categories, with EB-3 India moving to January 1, 2006 (from July 1, 2009) and EB-2 and EB-3 from all other countries retrogressing to January 1, 2017 (from no backlog) and July 1, 2016 (from no backlog), respectively.

Perhaps most notable is the EB-1 (first preference) category, where the cut off dates for all countries of chargeability (except India) have retrogressed substantially, to July 1, 2016, representing a backlog of a full 3 years (from April 22, 2018). EB-1 India remains oversubscribed at a January 1, 2015 cutoff date (no movement).

If the EB-1 backlogs continue to expand over the coming months, or even remain static, it will create collateral damage for those EB-1 executives and managers who don’t have the benefit of an additional 3 or 4 years remaining in L-1A status to wait to file the final step of their EB-1.3 green card process.  It is also advisable to keep a closer eye on the max-out date of L-1B specialized knowledge workers in light of the retrogression of the EB-2/EB-3 categories.

On that basis, we are running analytic reports for each of our business clients to identify L-1 employees who may be impacted. We will compile a list of those employees and will contact HR to discuss both near-term and longer-term strategies for affected employees. In addition to the recommendation that we “wait and see” what happens with the backlogs at the start of the next fiscal year on October 1, 2019, one of our near-term recommendations is to add these L-1 employees to the H-1B cap filing list for the upcoming fiscal year on April 1. Depending on the individual, we may also want to consider alternative visa classifications, including the O-1, E-3 or TN. One of our longer-term recommendations may be to consider starting a PERM-based green card process for certain L-1 individuals, depending upon country of origin and other factors.

While the August Visa Bulletin itself states this may only be a temporary retrogression due to increased demand, there is simply no guarantee that the backlogs will return to “normal” upon the start of the new fiscal year. On that basis, we are working to formulate a plan for each of your employees who is potentially affected by these retrogressions.

If you have any questions about visa retrogression, or would like to discuss appropriate alternatives to the L-1 category, please do not hesitate to contact Anthony F. Siliato or Scott R. Malyk.