Immigration Newsletter
March 2018  |  Volume 10, Issue 1
We have officially entered the busy season for employment-based immigration, preparing for the annual H-1B cap filings which open on April 1. It remains to be seen what trend USCIS may establish for this year's cap cases, such as the Level 1 wage RFEs which dominated last year's adjudications. For 2018, RSST attorneys are preparing H-1B petitions, in addition to all government filings, with a particular focus on addressing potential points of scrutiny based on USCIS RFE trends and proposed rule changes. The world of immigration law continues to grow more challenging.

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
Per our News Flash on February 1, H-1B cap season is upon us. USCIS begins accepting new H-1B petitions on April 2, 2018, with 65,000 H-1Bs available for FY2019, plus an additional 20,000 for individuals with advanced degrees (Master's or higher) from U.S. institutions. USCIS typically permits employers to file H-1B petitions for the first five business days of April (April 2 - 6 this year) before assessing if the cap of 85,000 has been met. The demand for H-1Bs has been high for the past several years, with 199,000 petitions filed last year.

RSST Law Group anticipates that the cap will be reached and exceeded by April 6, triggering a random computerized lottery selection of petitions which USCIS will adjudicate. Those H-1B petitions which are selected and approved will go into effect on October 1, 2018. Unlike last year, USCIS has confirmed it will permit premium processing requests for this year's H-1B cap petitions, allowing employers and employees to receive adjudications in a number of weeks rather than several months (or longer).  After the lottery is complete, USCIS will announce the start date for the 15-day premium processing window. 

In order to have H-1B petitions prepared and ready for this tight filing deadline, please provide all H-1B petition materials to your RSST attorney as soon as possible.
EB-1 Visa Number Availability
Demand for EB-1 immigrant visa numbers has been high for FY2018. Because of this, beginning April 1, a Final Action Date of January 1, 2012 has been established for the EB-1 India and China categories. This date effectively makes the categories Unavailable, as all of the Indian and Chinese EB-1 immigrant visa numbers have been allocated for FY2018. When a Final Action Date is set for a particular preference category and country of chargeability, no new I-485 applications may be filed based on the preference category until the Final Action Date advances. Similarly, pending I-485 applications with a priority date after the Final Action Date cannot be adjudicated until the date advances beyond the application's priority date.
New immigrant visa numbers will become available (and the EB-1 India and China categories will likely once again become current) on October 1 at the start of FY2019. In the meantime, there may be some advancement of the Final Action Dates over the summer if worldwide demand for EB-1 visas declines, as those numbers could then be re-allocated to India and China.
Potential Immigration Changes for 2018
As discussed in our January 19 News Flash, in December 2017 the Executive Branch published regulatory priorities for 2018, including a number of proposed changes to USCIS rules and programs. While none of these changes have taken effect, employers should consider the possible rescission of the following work authorization options and the impact on employees.
  • Rescission of H-4 EAD work authorization. Beginning in May 2015, H-4 spouses of certain H-1B nonimmigrants became eligible for work authorization in the form of an Employment Authorization Document (EAD card). Per the 2018 regulatory priorities, USCIS has proposed rescission of such eligibility for work authorization, but no final decisions have been made at this time. We anticipate that proposed rulemaking to rescind H-4 EAD work authorization will begin as early as June 2018. Employers should contact an RSST attorney to discuss potential options for any employees using H-4 EADs (including a petition under the H-1B cap).
  • Rescission of International Entrepreneurship Rule. In January 2017, USCIS published a new rule which would permit international entrepreneurs to enter the U.S. as parolees for up to five years. This would provide a simpler alternative to seeking L-1 or E-2 status. The rule went into effect and advance parole applications were accepted beginning in December 2017. However, USCIS has indicated that rescission of the rule is a regulatory priority for 2018.
  • Rescission of STEM OPT extensions. STEM OPT extensions were first introduced in 2008, allowing recipients of U.S. STEM degrees in F-1 status to obtain a 17-month extension of their initial post-graduate Optional Practical Training (OPT) work authorization. Beginning in May 2016, this STEM extension was lengthened to 24 months beyond the standard one-year OPT validity. On December 15, 2017, the Department of Homeland Security (DHS) announced proposals to change several regulations, including an overhaul of the F-1 OPT system. We anticipate that notice of proposed rulemaking to rescind the 24-month STEM OPT extension will begin as early as October 2018.
Other proposed changes include revising definitions of requirements for H-1B status, including the terms "specialty occupation", "employment", and "employer-employee relationship". This would likely result in an increased number of RFEs as USCIS may seek new and different information in order to determine an employees' eligibility for H-1B status. USCIS has also proposed revising their schedule of filing fees, likely resulting in fee increases across multiple petition types.
New USCIS Memorandums
USCIS released multiple memorandums in February 2018 providing guidance and clarification on administrative issues.
  • Third-party worksite documentation for H-1B petitions. On February 22, USCIS issued a policy memorandum designed to strengthen protections to combat abuses of the H-1B system that can occur when an employee reports to third-party worksites. The guidance explains that H-1B petitions involving a third-party worksite must show, by a preponderance of the evidence, that: (1) the employee will be employed in a specialty occupation at the worksite, and (2) the petitioner will maintain an employer-employee relationship with the worker for the duration of the H-1B period requested. Suggested documentation which can be provided as evidence includes contracts between the petitioner and third-party worksite, and letters from the third-party end-client.

    It is also anticipated that the Department of Labor (DOL) will be releasing a new version of the Labor Condition Application (LCA) (ETA Form 9035) in May or June 2018, which explicitly requires listing third-party worksites for H-1B employees.
  • Signature requirements for USCIS filings. On February 15, USCIS issued a policy memorandum which clarifies its requirement for signatures on documents submitted by mail to USCIS. The memorandum confirms that all USCIS forms require a wet ink original signature by petitioners, beneficiaries, applicants and legal representatives. Most notably, the memorandum also terminates the ability of external attorneys or representatives to sign USCIS forms on behalf of a petitioner using power of attorney (POA). The memorandum clarifies that in-house counsel, HR staff and any authorized representative who is employed by the petitioner remain eligible to sign USCIS forms on the petitioner's behalf.
Fate of DACA Still Undecided
The Obama-era program known as DACA (Deferred Action for Childhood Arrivals), was designed to protect undocumented immigrants brought to the U.S. as children. It deferred any deportation action against DACA recipients for two year periods, and granted them work authorization. In September 2017, President Trump issued an executive order to end the program, effective March 5, 2018. Two federal circuit courts have issued injunctions against the executive order, requiring the administration to maintain key aspects of DACA, including permitting those already enrolled to renew their protected status. The Trump administration has appealed the injunctions and the actions remain pending in appellate courts.

In February 2018, the Trump administration submitted multiple measures to the Senate related to immigration reform. The measures included a concession regarding DACA recipients, allowing them to maintain legal status and seek citizenship, if Congress would agree to other measures, such as funding for a Mexican border wall and an end to the diversity visa lottery. The Senate rejected these measures, leaving the fate of DACA recipients uncertain.
Immigrant Visa Numbers and Visa Bulletin

The Chief of the Visa Control and Reporting Division, U.S. Department of State provides periodic analyses of current 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, as noted above, 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 April 2018 (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 Chargeability Areas Except Those Listed

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
4 - 6 months
5 - 6 months
PERM Prevailing
Wage Requests
2 - 3 months
PERM audits
7 - 8 months from
initial date of filing
4 - 6 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
  • May 14, 2018: Howard Silverman will speak at a Boston Bar Association Continuing Legal Education event regarding advanced criminal immigration issues.
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.
  RSST Law Group
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