Immigration Newsletter
December 2018  |  Volume 10, Issue 4

USCIS and DOL continue to make rapid changes in rules and policies affecting immigration. We are facing sweeping changes to the annual H-1B cap process, increased difficulties for L-1 intracompany transferees, and a surprising reversal of USCIS practice regarding I-131 Advance Parole applications. As the year draws to a close, we can expect many more changes on the horizon for 2019. Whatever the new year brings, the attorneys at RSST Law Group are committed to working closely with our clients to devise the best strategies for navigating the ever-changing landscape in U.S. immigration law. 
Below are summaries of the most recent immigration-related developments. Please note that our newsletter is primarily distributed to our employer clients, so we encourage you to share this information with your employees.
Proposed Rule for H-1B Cap Employer Pre-Registration

On November 30, USCIS published a proposed rule in the Federal Register which would require employers to register electronically with USCIS before being eligible to file H-1B petitions under the annual cap. The proposed rule also changes the selection process for the H-1B advanced degree exception ('Master's Cap') in order to increase the likelihood of selecting H-1B petitions for beneficiaries holding advanced degrees from U.S. institutions.

Under the proposal, USCIS would establish a designated registration period prior to the date new cap-subject H-1B petitions may be filed with USCIS (April 1). Employers seeking to file cap-subject H-1B petitions would then have a 14-day window in which to register each petition they intend to file, using employee names and position titles (among other information), and indicating whether the employee has earned a Master's degree or higher from a U.S. institution. There is no proposed fee for the initial registration at this time.  At the end of the registration period, USCIS would determine if it received enough registrations to reach the annual cap of 65,000, plus 20,000 for beneficiaries with advanced degrees from U.S. institutions. If the registrations met or exceeded the cap, USCIS would run a random lottery selection, and notify petitioners of which registrations had been selected. 

Petitioners would then proceed to file petitions with a USCIS Service Center for those selected registrations within a 60-day filing period. If the annual cap is not met in the initial registration period, USCIS would notify petitioners that all registered petitions are eligible for filing, and the registration/filing period would remain open on a rolling basis until the cap was met. USCIS intends for this new process to improve efficiency and lighten the administrative burden on the agency of collecting and sorting hundreds of thousands of paper H-1B petitions. The new system is anticipated to reduce wait times for notification of which petitions have been selected for processing.

As noted above, the proposed rule would also change the lottery system with regard to the Master's Cap. Under the current advanced degree exception, USCIS separately collects petitions for individuals holding a Master's degree or higher from a U.S. institution and runs a random lottery to select 20,000 of these petitions for processing. The 'Master's Cap' petitions which are not selected in the initial 20,000 petition lottery are then moved into the generalized lottery to select an additional 65,000 cap petitions for processing. Under the proposed new rule, USCIS would run the lottery for the general cap (65,000 petitions) first, then any remaining Master's Cap petitions would be subject to a second lottery for the 20,000 remaining visas for those holding advanced degrees from U.S. institutions. The proposed change is estimated to increase the selection of Master's Cap petitions by up to 16 percent, or 5,340 workers, in an effort to make the H-1B process more merit-based pursuant to President Trump's April 2017 Buy American and Hire American Executive Order,

The public comment period for the proposed rule will remain open until January 2, 2019. USCIS will then review and respond to all comments received (and potentially incorporate changes) before the rule can be finalized, reviewed by OMB, and published in the Federal Register.  In order to implement the registration process, USCIS must announce it on their website at least 30 days in advance. If the registration system is not finalized for the FY2020 cap season, USCIS will suspend the pre-registration process until the FY2021 cap season.

At this time we do not anticipate that the proposed rule for the H-1B pre-registration system will take effect for this fiscal year, so we encourage all employers to plan early for any H-1B petitions you wish to file during the April 1 to April 7, 2019 filing window (for H-1Bs to begin October 1, 2019).  Our office will begin preparing cap-subject H-1B petitions in early February.
Revised Labor Condition Application, Form ETA-9035
On November 19, the Department of Labor implemented a new version of the Labor Condition Application ("LCA") Form ETA-9035. The LCA is a required document for H-1B, H-1B1 and E-3 case types. Following is the new information requested on the LCA:
  • Employers are required to indicate whether sponsored workers will be placed at third-party worksites, disclose the name of the third-party entity, and provide the work address;
  • H-1B dependent and willful violator employers must specify the basis for any exemption from their additional recruitment and non-displacement attestations, and must provide the beneficiary's school information if the basis is a Master's degree or higher.
The revised LCA highlights that DOL is now inquiring in detail about third-party worksite placements. This change is aligned with USCIS' overall increased scrutiny of third-party placements and the relationships between H-1B employers, employees, subcontractors and end-clients.
Redefining L-1 Qualifications: 1-Year Foreign Employment Requirement
On November 15, USCIS issued a Policy Memorandum clarifying the requirement that beneficiaries seeking L-1 status must have been employed by a qualifying foreign entity abroad for at least one out of the previous 3 years.

L-1 status permits multinational companies to transfer employees from offices and affiliate entities abroad to work in the U.S. in a capacity that is managerial, executive or involving specialized knowledge. Under the relevant statute, a foreign national is eligible for L-1 classification if "within three years preceding his time of application for admission into the United States, [the foreign national] has been employed continuously for one year by a firm or corporation or other legal entity or an affiliate or subsidiary thereof..." However, a related regulation states that the one year of foreign employment must have occurred "within three years preceding the filing of the petition." This difference in language has led to the question of how to calculate the one year abroad - before the beneficiary enters the U.S., or before the L-1 petition is filed? For those individuals who enter the U.S. in another status, such as an H-1B worker or F-1 student, and subsequently seek to change to L-1, this is a significant difference.

The Policy Memorandum confirms the following regarding how to calculate the one year of foreign employment
  • The one year of foreign employment will be counted from the date of filing the L-1 petition. This means that beneficiaries in dependent (L-2, H-4) status and F-1 student status must have been employed by the foreign office/affiliate for at least one of the three years preceding the filing of their petition. Unfortunately, their time spent in the U.S. in L-2, H-4 or F-1 status counts against the calculation of time, even if the petitioner is funding their studies or stay in the U.S. Because these beneficiaries did not enter the U.S. with the initial purpose of working for the petitioner, their window to apply for L-1 status is not preserved.
  • As an exception, the one year of foreign employment will be counted from the date of admission into the United States for beneficiaries who have worked for the petitioner in another employment-based status such as H-1B or E-2. This means that individuals can work for the U.S. office/affiliate for over 3 years in a different status and still remain eligible to change status to L-1, so long as they worked for the foreign office/affiliate for at least one year out of three immediately prior to entering the U.S.
  • The employment must occur outside the United States. Brief trips to the U.S. for business or pleasure will not interrupt the one year of foreign employment, but must be deducted from the one-year calculation.
The Policy Memorandum concludes that, when a petitioner requests an extension of L-1 status, the above requirements must have been met at the time of filing a beneficiary's initial L-1 petition. This implies that USCIS will implement this clarified policy retroactively, potentially denying L-1 extension petitions for individuals who previously changed to L-1 status from dependent or student status based on the one-year calculation from their date of admission into the United States.
Advance Parole (I-131) Policy Change - Travel Allowed Without Denial

On November 16, during USCIS' Ombudsman Annual Conference, USCIS Director L. Francis Cissna indicated that USCIS would be ending the current practice (detailed in our August 2017 newsletter) of denying pending I-131 Advance Parole applications when the applicant travels abroad.

Prior to August 2017, USCIS had a long-standing practice of allowing I-131 applicants to travel internationally using dual-intent visa status (e.g. H-1B or L-1) or valid Advance Parole without abandoning the pending I-131 application. Beginning in August 2017, USCIS changed this practice without prior notice and began denying I-131 applications when the applicant departed the United States before the I-131 was adjudicated. This new practice of denying pending I-131 applications when the applicant travels abroad added a layer of complexity and frustration to the permanent residence process, essentially preventing permanent residence applicants from traveling abroad for a quarter of the year while they await new Advance Parole (even where they have previous travel documents which remain valid).

Since Director Cissna's statement last month, USCIS has updated the Form I-131 " Special Instructions" on its website to indicate that individuals may travel on approved Advance Parole documents, provided they are valid for the entire period outside the U.S., without abandoning a pending I-131 application for new Advance Parole.  The instructions do not, however, address individuals without valid Advance Parole documents.
Increased Issues for Nonimmigrants at the RMV

Attorneys at RSST, as well as the broader immigration legal community, have noticed a significant increase in clients reporting issues when applying for driver's licenses at the Registry of Motor Vehicles (RMV) in Massachusetts. In late March 2018, the Massachusetts RMV launched a new computer system in order to begin offering new versions of state and federal licenses/ID cards as required by the REAL ID law. As part of this change, the RMV has also updated their policies and practices regarding required documents for license applications.

Since these changes have taken effect, our attorneys have heard from multiple clients that they encountered difficulty when applying for first-time or renewed driver's licenses. It appears that the new documentation policies, computer systems and/or training for RMV officers do not adequately address the types of documents which foreign national applicants can present to sufficiently confirm their identity and legal status. We have heard reports of clients being asked for immigration documents which are not applicable to their status type, and license applications being delayed or refused because of slight variations in the spelling or arrangement of a name across multiple identity/immigration documents. There have been some reports that clients have fewer issues at the Boston RMV office than at other locations.

Immigration attorneys are working with RMV liaisons and officials regarding these issues in the hopes that their policies and training may be updated to better address the needs of the immigrant population. In the meantime, we strongly encourage nonimmigrant applicants to apply for license renewals at least two months prior to the license expiration to allow sufficient time to address issues which may arise at the RMV. Massachusetts accepts license renewal applications up to one year prior to expiration.
Immigrant Visa Numbers and Visa Bulletin

The Chief of the Visa Control and Reporting Division, U.S. Department of State (DOS) provides periodic analyses of current immigrant visa trends and future projections, beyond the basic visa availability updates provided in the monthly Visa Bulletin. Following is a synopsis of the current trends in immigrant visa number availability, as of November and December 2018:
  • General Notes: Due to high demand in the first quarter of this Fiscal Year which was likely a result of the retrogression of many dates at the end of FY2018, it has been difficult to predict actual trends for the remainder of FY2019.  DOS hopes to have a clearer picture of upcoming demand in order to publish projections in the February 2019 Visa Bulletin. In the meantime, applicants can take advantage of USCIS accepting I-485 applications based on the Dates for Filing (although these applications still cannot be adjudicated until the Final Action Date is current, as explained in more detail below).  It is expected that USCIS may revert to using the Final Action Dates for accepting filings beginning in February 2019. 
  • EB-1: Demand for EB-1 visas remains very high. Based on the Dates for Filing and indications from DOS, EB-1 Worldwide may reach June 1, 2018 within the next 8 to 12 months, but EB-1 India and China may only reach October 1, 2017 in the same timeframe. 
  • EB-2 and EB-3 China: Demand for EB-3 China far exceeded the target amounts in October, while EB-2 China demand was less than expected, which resulted in EB-2 dates jumping ahead of EB-3 dates.
  • EB-2 and EB-3 India: EB-3 India continues to advance much more rapidly than EB-2, making it very likely that EB-3 India will surpass EB-2 within the next several months, leading to the possibility of downgrade petitions. 
There are five preference categories for the allotment of employment-based immigrant visa numbers, and four preference categories for family-based immigrant visa numbers. For purposes of this newsletter, we are including only the categories most applicable to our business clients. For additional information on other preference categories not included below, please contact the attorney with whom you work, or visit the State Department's website.

Employment-Based Preference Categories
  • First (EB-1): Priority Workers. Includes Persons of Extraordinary Ability, Outstanding Professors and Researchers, and Multinational Managers or Executives.
  • Second (EB-2): Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability. Also includes National Interest Waiver (NIW) applicants.
  • Third (EB-3): Skilled Workers, Professionals, and Other Workers.
Immigrant visa numbers are available only to an applicant whose priority date is earlier than the cut-off date listed in the charts below. "C" means current, i.e., numbers are available for all qualified applicants.

Following are the relevant Visa Bulletin  Final Action Dates for January 2019 (i.e. dates that allow an application to be adjudicated):

All Chargeability 
Areas Except Those Listed
China - mainland born
Other Workers

Family-Based Preference Category
  • FB-2A: Spouses and Children of Permanent Residents.
All Other Chargeability 

Dates for Filing:

The Dates for Filing are traditionally used by the State Department to initiate the immigrant visa interview process, with the expectation that those dates will become current (i.e. be listed on the Final Action Dates chart) within the next 8 to 12 months. USCIS announces each month on its website whether it will use the Final Action Dates or the Dates for Filing chart to accept I-485 applications.  So far this Fiscal Year, USCIS has allowed individuals whose priority date is current based on the Dates for Filing chart to file their I-485 applications (with associated applications for EAD and Advance Parole), but those I-485s will not be adjudicated until the priority date becomes current on the Final Action Dates chart. 

Following are the relevant Visa Bulletin Dates for Filing for  January 2019 (i.e. dates that allow an application to be filed with USCIS):

All Chargeability Areas Except Those Listed
China - mainland born
Other Workers

Family-Based Preference Category FB-2A, Spouses and Children of Permanent Residents:
01DEC17 for all countries.
Processing Times

While processing times at USCIS and the Department of Labor (DOL) fluctuate, both agencies attempt to adjudicate cases on a first in - first out basis and in the order in which they were received.  Based on reported processing times from those agencies and recent case adjudications at RSST Law Group, following are the average processing times for the most commonly-filed employment-based applications and petitions:  

Application /
Petition Type
Current Reported
Processing Times
CSC: 8 - 10 months
VSC: 2 - 5 months
NSC: 2 - 4 months
2 - 4 months
PERM Prevailing
Wage Requests
3 - 4 months
PERM audits
7 - 8 months from
initial date of filing
4 - 6 months
5 - 10 months
3 - 4 months
Advance Parole
3 - 4 months

Please keep in mind that these are average processing times, and there are always some outliers (i.e. cases that are approved more quickly, and some which take longer).  
In the News: What's Happening at RSST Law Group
  • RSST Law Group has once again been named by U.S. News Media Group and Best Lawyers as a First-Tier law firm in the area of Immigration Law in Boston in the 2018 U.S. News Best Law Firms rankings.
  • On November 5, Howard Silverman presented at an EOIR training sponsored by the AILA New England Pro Bono Committee regarding Motions to Reopen.
  • On November 18, Howard Silverman received the Founder's Award from Refugee Immigration Ministry in recognition of the many years of legal support he has provided to asylum seekers.
  • RSST Law Group welcomes the return of Kate Bennett to our team.  Kate worked for the firm for nearly 5 years before leaving to start a family.  We are happy to have her back as a legal assistant working with Heidi Snyder and Marlene McManus. 
  • Finally, Howard Silverman will be retiring at the end of this month.  We cannot thank him enough for all he has contributed to the firm over his 34-year tenure.  He will be very missed!
Please Note that this newsletter does not constitute legal advice and is not a substitute for consulting with an attorney.  Please contact us by phone or email if you have questions about any of the topics discussed here or if you have any other immigration or naturalization questions.
Attorneys at RSST Law Group:
Howard A. Silverman  |  Heidi L. Snyder  |  Rhonda A. Tietjen | 
  RSST Law Group
50 Congress Street, Suite 200, Boston, MA  02109  |  (617) 542-5111 |