Immigration Newsletter
June 2018  |  Volume 10, Issue 2

As we approach the mid-point of 2018, changes continue to arise in U.S. immigration law. RSST attorneys are identifying evolving adjudication trends by USCIS for H-1B petitions, permanent residence adjustments of status and various other case types. After another busy season of H-1B cap petition filings, it remains to be seen what adjudication trends will emerge for the pending H-1B cap petitions selected in the lottery. USCIS has also recently made important policy changes for nonimmigrants in F-1, J-1 and M-1 status.

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.
FY2019 H-1B CAP

On April 11, USCIS announced that it had completed the lottery selection process for FY2019 H-1B cap petitions. In total, USCIS received 190,098 petitions for the 85,000 available new H-1Bs. This is a slight decrease from the number of H-1B petitions filed last year, which was 199,000. This gave petitions an approximate 44% chance of selection in the random computerized lottery. Those cases selected in the lottery are now being processed, and RSST has received some early approvals. Those petitions which were not selected will be returned over the next several weeks.

As announced in our March 20 News Flash, USCIS has temporarily suspended premium processing for H-1B cap petitions. The suspension is expected to end on September 10, after which time petitions that remain pending should be eligible to be switched to premium processing for expedited adjudication.
Accrual of Unlawful Presence for F, J and M Nonimmigrants
On May 10, USCIS issued a new Policy Memorandum regarding the accrual of unlawful presence for nonimmigrants in F (student), J (exchange visitor) or M (vocational student) status. Currently, F and J nonimmigrants admitted to the U.S. for a duration of status (D/S) begin accruing unlawful presence either (1) the day after a formal finding of status violation by USCIS; or (2) the day after an immigration judge orders that the applicant be excluded, deported or removed. F, J or M nonimmigrants admitted to the U.S. with a date certain expiration (indicated on the I-94 record) begin accruing unlawful presence under the prior two conditions, and also after the expiration date listed on the I-94.

Effective August 9, 2018, USCIS will institute a new policy for calculating unlawful presence for F, J and M nonimmigrants and their dependents. Unlawful presence will begin accruing if any of the following occur:

(1) The day after the applicant no longer pursues the course of study or authorized activity, or the day after he/she engages in an unauthorized activity (such as working without authorization);

(2) The day after completing the course of study or program (including any authorized practical training and/or grace period);

(3) The day after the I-94 expiration if the applicant was admitted for a date certain; or

(4) The day after an immigration judge orders that the applicant be excluded, deported or removed.

This policy change has the potential to seriously impact students and exchange visitors and their eligibility for future immigration benefits. If the nonimmigrant deviates from the activities authorized by their type of status, it may trigger the accrual of unlawful presence, which will be difficult for employers or attorneys to identify without thorough and honest disclosure from F, J and M nonimmigrants. Accrual of over 180 days of unlawful presence before departing the U.S. results in a 3 year bar prohibiting the nonimmigrant from returning to the U.S., while accrual of one year or more results in a 10 year bar.

Employers should ensure that F, J and M employees and new hires do not work without authorization or engage in activities outside of those authorized by their status. As always, attorneys at the RSST Law Group are available to answer employer questions regarding this issue.
Employee-Employer Relationships for STEM OPT Employees
In April 2018, USCIS updated the language on its website for Optional Practical Training (OPT) for STEM F-1 students, which states that STEM OPT employees are not permitted to work under arrangements that do not constitute a bona fide employer-employee relationship. Examples of such arrangements include multiple employers, sole proprietorships, temp agencies, consulting firms that provide labor for hire, etc. The website confirms that STEM OPT is available when there is a bona fide employer-employee relationship, and that the employer providing the practical training experience must be the same one that signs the STEM Training Plan. As a reminder, STEM OPT employment must also be full-time and paid.

While the language can be interpreted to prohibit STEM OPT employees from working at third-party worksites, it does not prohibit such an arrangement as long as a bona fide employee-employer relationship can be established by the petitioning employer. If challenged, the relationship can be established by providing documents and information relating to how the employee is paid, supervised, reviewed, and how their work is controlled. This challenge of the bona fide employer-employee relationship has long been present for H-1B employees working at third-party worksites and can be successfully overcome.

Please also note that this language is not part of a formal policy memorandum from USCIS, it is general information on USCIS' website.

USPS Secure Mail Delivery of Immigration Documents

 In April, USCIS announced that it will begin phasing in use of the U.S. Postal Service's (USPS) Signature Confirmation Restricted Delivery service for certain immigration documents. Effective April 30, USCIS now uses the USPS system to mail permanent residence cards (green cards), Employment Authorization Documents (EAD cards) and Travel Booklets to the designated recipient (attorney or applicant residence). As part of the new delivery method, applicants must present identification to USPS to sign for their documents upon delivery. Applicants also have the option of designating an agent to sign on their behalf using PS Form 3801 or PS Form 3801-A.

Deliveries that are not signed for will be returned to USCIS as undeliverable and will be destroyed after 60 business days if USCIS is not contacted by the intended recipient. To ensure that all important immigration documents are successfully delivered, RSST attorneys are providing the option of having applicants' permanent residence cards and EAD cards delivered to our office.
Increase in Form I-9 Audits by ICE

On May 14, the Associated Press reported that Immigration and Customs Enforcement (ICE) has increased employer I-9 audits for FY2018 by approximately 60% over FY2017. As part of the Trump Administration's earlier promise to increase audits, the head of ICE's Homeland Security Investigations unit stated that the agency plans to open as many as 15,000 audits each year to ensure compliance with federal laws and penalize unauthorized employment.

The article also states that ICE has proposed creating an Employer Compliance Inspection Center to perform employer audits at a single national location rather than through regional offices, and to implement more electronic audit notification and review. The new center would enable ICE to conduct a higher volume of audits and should create a "'reasonable expectation' among employers that they will be audited."

Employers who receive I-9 audit notification from ICE should contact an attorney at RSST Law Group. RSST attorneys are also available to conduct employer I-9 self-audits and other compliance services.
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 January 2018: 
  • General Notes:
    With the implementation of mandatory employment-based adjustment interviews last fall, visibility into future visa demand is limited, particularly since it is not yet clear whether adjudications will be delayed and how that will impact visa usage. Overall, USCIS has approved several thousand less visas in the past few months compared to a year ago. DOS expects this will result in advancement of certain categories over the coming months to ensure all visa numbers are used, but may ultimately lead to retrogression if the advancement proves too aggressive.
  • EB-1 China and India: The January prediction indicated that these categories were expected to remain current, perhaps until the summer. However, based on increased demand a Final Action Date has been implemented for April 2018. If worldwide EB-1 demand declines, those excess numbers may be used to advance EB-1 India and China over the summer.
  • EB-1 and EB-2 Worldwide: These categories are expected to remain current for the foreseeable future. 
  • EB-2 India: This category is expected to advance slowly, up to two weeks at a time in the coming months. 
  • EB-2 and EB-3 China: EB-3 China availability remains ahead of EB-2, a trend which is expected to continue for the foreseeable future. This allows for "downgrade" petitions (i.e. individuals with EB-2 petitions can file new petitions under EB-3 to benefit from the availability of EB-3 visa numbers). Both categories are expected to continue advancing somewhat rapidly.
  • EB-3 India: Little information is available regarding demand in the USCIS system beyond August 2007, so we can expect the Final Action Date for EB-3 India to advance rapidly to generate demand as evidenced by the jump from January 2007 in March to February 2008 in April 2018. 
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 June 2018 (i.e. dates that allow an application to be adjudicated):

All Chargeability 
Areas Except Those

China - mainland born


Other Workers

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

All Chargeability 
Areas Except Those


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: 4 - 6 months
VSC: 4 - 6 months
NSC: 4 - 6 months
5 - 6 months
PERM Prevailing
Wage Requests
2 - 3 months
PERM audits
7 - 8 months from
initial date of filing
5 - 8 months
9 - 12 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
  • Effective June 1, Attorney Ellen Driver opened her own immigration law practice and will no longer be an Associate at RSST Law Group. Her new firm, the Law Office of Ellen F. Driver LLC, is located in Cambridge, Massachusetts. We are deeply grateful to Ellen for her many years of excellent service with the firm and wish her all the best in her new venture.
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 |