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April 12, 2019
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Correction to our April Newsletter!
*This is a revision to the newsletter sent earlier today which stated the 15-day premium processing period will begin on April 20, 2019. The 15-day premium processing period will begin no later than May 20, 2019.

In this month's newsletter, you'll find an update on this year's H-1B cap selection and premium processing, information about E-2 visas for Israeli citizens, new LCA posting guidelines, a new H-1B data hub, and visa processing consolidation in China.
USCIS REACHES H-1B CAP LIMIT AND COMPLETES RANDOM SELECTION
The USCIS announced yesterday that it completed the random selection (“H-1B lottery”) on April 10th to meet the 65,000 regular H-1B cap and the additional 20,000 for the H-1B cap for foreign nationals who hold advanced degrees from U.S. universities (“master’s degree cap”).  The USCIS conducted this random selection after employers filed H-1B cap petitions between April 1 and April 5, when the USCIS announced that it had received enough petitions for the 65,000 regular H-1B cap.  A total of 201,011 H-1B petitions were received during the first 5 days of April. 
 
Selection of this year’s H-1B cap:  A recent regulation changed the procedure for conducting the random selection process for this year’s H-1B visa lottery.  The USCIS first selected the regular H-1B cap cases (65,000) that included all the H-1B petitions filed, and then it selected the additional 20,000 for the master’s degree cap from the eligible petitions that had not been selected in the regular H-1B cap.  In the past, the USCIS selected first the master’s degree cap, and then those that were not selected were put into the regular H-1B cap and then the USCIS selected the 65,000 for the regular cap.  This change in how the H-1B cap cases are selected is expected to increase the percentage of approved H-1B visa petitions on behalf of foreign nationals who hold U.S. advanced degrees.  
 
Premium processing cases: As of today, the USCIS started to issue receipt notices for the H-1B petitions filed with premium processing, which was only available for those requesting a change of status.  The USCIS announced previously that the 15-day premium processing period will begin no later than May 20, 2019.  This is the first stage in the USCIS’ “two-phased approach” of allowing premium processing.  During the first phase, the USCIS allowed only H-1B cap cases requesting a change of status to use premium processing and required that the premium processing request be filed with the H-1B cap petition.  The second phase of premium processing for all other cap-subject H-1B petitions will not begin before June 2019.  Petitioners will be able to file Form I-907 requesting premium processing for these cases when announced.
ISRAELI CITIZENS SOON ELIGIBLE FOR E-2 INVESTOR VISAS
On May 1, 2019, the E-2 Treaty Investor Visa will be available to Israeli citizens wishing to come to the United States by making a substantial investment in an existing business or to start up a new business in the United States.  The Israel E-2 visa has been much anticipated and the recent treaty between Israel and the United States follows several rounds of negotiations; the treaty grants a reciprocal B-5 investor visa for U.S. citizens who wish to start up or invest in companies in Israel. E-1 treaty trader visas already exist for Israeli nationals which allows E-1 visas for owners and employees of companies with substantial trade between the United States and Israel.
 
The E-2 visa grants qualified treaty investors and employees, as well as their dependent family members, a visa valid for up to five (5) years, with stays in the United States valid for 2 years upon each entry.  The requirements for the E-2 visa include:
  • at least 50% company ownership by persons of the treaty country who are not also U.S. citizens or permanent residents,
  • a substantial investment in the company that is irrevocably committed,
  • a real and operating enterprise, and
  • a business that is not “marginal” in that it provides income to more than just the investor and that it has a significant economic impact in the United States. 
There are over 80 treaty countries with nationals eligible for E-1 treaty trader and E-2 treaty investor visas.  A list of these countries is found on the website of the U.S. Department of State at https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/fees/treaty.html
 
How can we help?  Trow & Rahal regularly processes E-1 and E-2 treaty visa applications for foreign nationals.  If you have any questions about the new treaty with Israel or wish to pursue a treaty visa, please contact us.
LCA POSTING GUIDANCE ISSUED BY DOL
The U.S. Department of Labor (DOL) issued a Field Assistance Bulletin (Bulletin) for all DOL District Directors providing guidance on how U.S. petitioners of H-1B visas must comply with mandatory posting requirements related to the Labor Condition Application (LCA).  The Bulletin is not a regulation and does not have the authority of regulation. However, it provides insight into how the DOL interprets the electronic notice regulation for compliance purposes.
 
As part of the Labor Condition Application (LCA) process, which is the first step of the H-1B process, H-1B petitioners must notify affected U.S. workers of the employer’s intent to hire an H-1B worker. This requirement, referred to as the “notice” or “posting requirement,” mandates that affected workers be advised of the terms of employment including salary of an H-1B worker, the right of U.S. workers to examine documents related to the formulation of that salary determination and of the U.S. workers’ ability to file complaints with any DOL Wage and Hour Division office.
 
The recent Bulletin indicates that employers choosing to communicate the required information electronically must ensure that all affected employees, including those employed by a third-party employer, have access to, and are aware of, the electronic notification. 
 
Compliance with the Bulletin means that H-1B employers must take the steps of:

1. informing affected workers (including those employed at third-party sites) that they may the H-1B employer’s website to read the regulatory notices, and
2. ensuring it is apparent to affected workers which website notices apply to their worksite.

This new guidance means that merely posting the LCA notice on the petitioner’s website or intranet is not likely to be enough if there are employees at third-party locations.  The petitioner will have to take additional steps to provide adequate notice.
The USCIS Announces New “H-1B Data Hub”
The USCIS announced an H-1B employer data hub allowing the public direct access to which companies are hiring H-1B workers. In addition, the public can download complete data files by fiscal year.  Visitors to the H-1B hub can view the data by company name, city, state or zip code.  Despite the USCIS’ statements that the H-1B Data Hub will be an example of transparent government, many are concerned that the information can lead to backlash against those companies obtaining the most H-1B visas.  Information about the Data Hub can be found at https://www.uscis.gov/h-1b-data-hub.  
Consolidation of H and L Visa Processing in China
The processing of H and L visas will only occur now at the U.S. Embassy Beijing, U.S. Consulate General Guangzhou, and U.S. Consulate General Shanghai.  This comes after the U.S. Embassy in Beijing and Consulates General in China announced changes to consolidate the processing in China of H and L visa applications for foreign nationals. The U.S. Department of State will no longer conduct H or L visa interviews at the U.S. Consulate General Chengdu or the U.S. Consulate General Shenyang.
 
To date, we have not seen reports of how this change has affected the processing times of H and L visas in China, but we expect the processing of these visa petitions at two fewer sites to cause delays.
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