Things are Finally Starting to Move at USCIS

While COVID cases in various USCIS locations around the country and at the U.S. consulates abroad will continue to dictate how quickly “normal” processing times will take to resume, it does appear that processing times are improving. For example, USCIS is starting to process N-400 naturalization applications that have been stuck for over 18 months. That is great news for green card holders who have been stuck in the backlog.

In addition to slightly improving USCIS processing times, here are some updates to the H-1B post-lottery phase, student visas, and E-Verify enforcement.

H-1B Visas

Recently, USCIS conducted the annual lottery it uses to allocate H-1B visas to both bachelor’s and master’s degree holders for jobs starting in October 2021. Anecdotally, most companies had a low percentage of registrations selected in the lottery. Reports range from just 5% to 25% although the official number is about 36%.

One of our clients registered for the lottery last year but was not selected. Fortunately, this year, USCIS selected one of the registrations for the employee who needed it the most. The employee was in his last year of his Optional Practical Training (OPT) working as a STEM graduate for our client.

Had he not been selected this year, the client would lose a valuable employee. The employee would have to either return to his home country or try to locate employment with an employer who is not subject to the H-1B visa cap, which is 65,000 visas for bachelor’s degree holders. (Employers submitted over 350,000 registrations for 85,000 visas). We are now preparing the H-1B visa petition to submit before the OPT status expires.

By submitting the H-1B petition before the employee’s current F-1 student-status expires in July, the USCIS regulations allow him to remain lawfully in the U.S. When USCIS approves his H-1B petition, He can officially start H-1B employment on October 1 without having lost his lawful status.

However, it is very important to read the H-1B lottery selection notice. USCIS provides instructions to master’s and bachelor’s degree holders regarding when and how to file the I-129 petition. Our USCIS notice of selection states that we must file by June 30, which is sooner than the employee’s status expires in mid-July.

F-1 Visas

USCIS announced recently that students who work in OPT before or after graduation, or who require a two-year STEM extension, can now apply for their Employment Authorization Document (EAD) online. OPT is employment that is directly related to a student’s course of study.

This should speed up the processing time for EAD cards and reduce the burden on the SEVIS system and school officials.

E-Verify News

Last October, USCIS announced that employers would have ten days during which they must act on “no match” letters, also called TNCs for Tentative Non-confirmation letters or notices. Employers are to refer the case to the Social Security Administration and/or the US Department of Homeland Security (DHS) if the employee contests the information in the notice or, close the case.

DHS states that this is not necessarily a new rule, rather, they are ramping up enforcement of the ten-day period by which an employer must address the TNC.

If employers did not act right away, E-Verify started contacting employers soon after the announcement last year. E-Verify issued clarifying guidance in the E-Verify Manual stating that employers must take the following steps:

  • Download and print the Further Action Notice and confirm whether the information at the top is correct.
  • Privately notify the employee of the TNC notice.
  • Give the employee an opportunity to review the information on the notice and confirm whether it is correct. If the employee’s first language is not English, provide a translated version of the Further Action Notice.
  • Have the employee write directly on the Further Action Notice whether the employee will contest the TNC or, not contest the TNC.
    • Sign the Further Action Notice.
    • Date the Further Action Notice.
    • Provide a copy of the signed and dated Further Action Notice to the employee.
  • Place the signed-and-dated original Further Action Notice with the employee’s I-9 form in the employer’s file.
  • Instruct the employee that he or she must provide you with a response within ten days of when E-Verify issued the TNC or, you will close the case in E-Verify.
  • Close the case in E-Verify if the employee does not provide a decision whether to contest or not contest the Further Action Notice.

If the employee takes no action on the TNC within the ten days, the employer may terminate employment with no civil or criminal liability. The case can be treated as a Final Non-confirmation and the employer should close the case in E-Verify. The E-Verify system will then be unable to confirm that the employee is authorized to work in the U.S.

Apparently, employers are leaving cases that have received TNC notices open beyond the ten-day time frame. Leaving cases open is a red flag for the government in the system. USCIS states that the following situations are compliance violations that could lead to sanctions and termination of the E-Verify account:

  • When the employee contests the information in the TNC, and the employer does not refer the case to either the Social Security Administration or the Department of Homeland Security.
  • When the employee does not contest the information in the TNC, and the employer fails to close the case in E-Verify.

The important thing to keep in mind for compliance purposes is that this 10-day period does not require the employer to resolve the discrepancy. It only requires the employer either to indicate that the employee is contesting the TNC or to close the case in E-Verify. We are hearing that E-Verify is contacting employers with outstanding TNCs.

Bottom Line

Immigration requirements are changing at an agency level. For any meaningful reform to take place, Congress will need to address it through legislation as there is a limit to what President Biden can do through executive orders.

If you have any questions regarding compliance or filing new petitions with USCIS, please contact our immigration department for help.