After a tumultuous few weeks that started with a reported hardware failure in a DOS security database on June 9th, we are pleased to report that all consulates appear to be back “online.” Although the exact technical issue was clouded in secrecy, U.S. consulates from the 9th until Monday June 22nd were unable to issue ANY visas as federal law requires all immigrant and non-immigrant visas be properly screened through certain criminal and background databases before issuance. As U.S. consulates could not access these databases they could not issue visas. It took from the 22nd until now for all consulates to return to visa processing, and given the issues there are still a significant backlog of visas awaiting security clearances, and of individuals whose appointments were cancelled as a result of the problem. It will likely take a month or more for some consulates to return to normal processing and we urge clients with visa needs to book appointments as soon as possible as some consulates may already be booking weeks ahead of time. If you are having a specific consular issue and wish our assistance please contact your attorney or paralegal.
We previously reported that a recent USCIS AAO case has triggered new guidance from USCIS requiring H-1B amendments be filed by August 19th in certain circumstances. This guidance is subject to comment and a few weeks ago the Director of USCIS, Leon Rodriguez, publicly proclaimed that the guidance would be applied prospectively and not retroactively. Since his public announcement on June 12th we have waited anxiously for an update on this guidance before telling clients they need to incur the costly expense of H-1 amendment filings. We know that many firms are telling clients to file the H-1 amendment now, as the deadline of August 19th is soon approaching.
From our vantage point, we don’t want our clients to incur expenses without justification, and at this point it is too soon to conclude that such a filing will be required. If the new guidance is proclaimed to be prospective in nature in the coming weeks the only filing that will be required is when an H-1B employee will be working at a new worksite that is outside of the municipality or county in which they work (or outside the normal commuting distance). The current guidance that is under review requires an amendment filing by August 19th if a worker has previously changed work location since receiving their last H-1B approval. Note – prior to this case and recent guidance employers complied with new worksite locations by filing and posting new certified LCAs but typically would not amend the filing. As a result, the current rule as it is drafted creates significant additional expenses for companies that had complied with prior guidance. We are hopeful that there will be clarification on the rule’s prospective or retrospective approach in the next three weeks and as a result we are holding off on filing amendments for clients. We will reassess and communicate our thoughts to clients with enough advance time to comply in the event the current guidance is not modified.
As previously reported USCIS received approximately 233,000 H-1B petitions against the FY 2016 cap in the first five business days in April. Although we anticipated we had all expected receipt notices and confirmations for cases that were accepted in the lottery by mid-May, we had not yet heard on those cases that were not selected in the lottery. In past years we’ve always had all rejected cap filings returned before the end of May, and that allows final closure for our clients. Unfortunately given the unprecedented number of filings USCIS has been much slower to return H-1 filings that did not get through the lottery and we started receiving a trickle of these in the second week of June. As of today we have received the majority of our rejected cap filings and we are sending final confirmation emails to those clients who did not get picked in the lottery. Although we expected this result several weeks ago, it is ultimately good to have finality in this process. Should any clients have questions regarding the rejection or options for other immigration benefits we encourage you to talk to your company management and your attorney or paralegal at the office.
On a purely administrative note we wish to announce to all clients that Brown Immigration Law, LLC is now Brown Immigration Law P.C., L.L.O. – technically the LLC was today merged into the newly formed P.C. so that all ongoing client matters/agreements and cases have automatically transferred without any fanfare or hoopla. We’ve made this change for administrative reasons and it in no way changes our relationship or service to our clients. Please update your records accordingly. Please don’t hesitate to ask if you have any questions or concerns.
**This newsletter/memo is provided for informational and discussion purposes only. It does not act as a substitute for direct legal contact on an individual basis.**