Q&A’s published on the World Journal Weekly on March 3, 2019 1. Applied for EB-5 Investor Investment in 2017, and With The Line So Long, What Else Can I Do To Immigrate? I Am Major Owner of a Company in China. 2. What Are The Chances of Being Approved If Applying For H-1B Visa With a Small Tutoring Company? 3. How Should My Son Answer the DS-160 Question of Whether an Immigrant Visa Petition Has Been Filed for Him Where It Was Filed For Me And He Was Only Listed As a Member of My Family? 4. Can I Leave on Advance Parole If I Have Already Received a Notice of Intent to Deny My Adjustment of Status Application?

1. Applied for EB-5 Investor Investment in 2017, and With The Line So Long, What Else Can I Do To Immigrate? I Am Major Owner of a Company in China.

I and my family have been trying to emigrate to the U. S. from China through EB-5 investment, and our case was finally filed (I-526) in November 2017. Now we understand that it will be many more years – probably at least 10 more – before we are allowed to finally immigrate. Is there another way for us now? I am the major owner of a company in China that does the equivalent of $8 million (USD) business per year and we have over 300 workers. Our entire family has B-1/B-2 10 year visas.

Mr. Lee Answers,
You may wish to consider immigration under the EB-1C category for multinational managers or executives if you have or if will have a related U. S. company which will be a viable affiliate or subsidiary or headquarters operation. The company can have the relationship with you or your China company since you are the major owner. This path would take approximately 2 years at present. At least 50% of the shares of either the U. S. or China operation must be held by the counterpart company in the other country. You would have to demonstrate the viability of companies in China and the U. S. In addition, you would have to demonstrate that you or your wife (if she is to be the sponsored manager or executive) has had one year experience out of the past 3 as an executive or manager in the China company. Under U. S. law, you could start your own business, but if starting small, you would have to give a comprehensive business plan on how the business is going to grow. Growing your own U. S. business to the point that it can support an application for your green card might take years. Only if you start big in terms of investment and numbers of employees might you be able to soon apply for the green card. Acquiring a viable existing U. S. company might be a move to consider in this direction.

2. What Are The Chances of Being Approved If Applying For H-1B Visa With a Small Tutoring Company?

I have a bachelor degree in mathematics and am studying for my Masters degree which will not complete for another year. A tutoring service run by a family friend is interested in sponsoring me for H-1B to tutor math and physics. This would be a part-time job. The company has one full-time employee, a few tutors who are subcontracted, and I would be the first part-time employee. What are my chances of success in getting H-1B in this situation?

Mr. Lee Answers,
U.S.C.I.S. has become stricter in its adjudication of H-1B’s with a reported increase in denials of 41% from the 3rd to the 4th quarter of FY 2017 (9 months into the Trump presidency). Later figures are not available. The size of an organization appears to carry much weight with U.S.C.I.S., and larger companies get the benefit of the doubt in H-1B adjudications. In small companies of this size, questions abound such as whether the alien will be doing all professional work or perhaps some clerical or other nonprofessional work because of the company’s small size and whether the company has enough work to keep the individual occupied in professional work. You might probably be better off finding a larger sponsoring organization if such can be found.

3. How Should My Son Answer the DS-160 Question of Whether an Immigrant Visa Petition Has Been Filed for Him Where It Was Filed For Me And He Was Only Listed As a Member of My Family?

My U. S. citizen brother filed a petition for me in 2009 and we will likely have to wait another 4 years according to the lawyer before we can immigrate. My son is finishing high school and we want him to study in the U. S. Looking at the American non-immigration visa form, DS-160, it asks whether he has ever had an immigration visa petition filed on his behalf. We do not want him to lie, but want him to have the best chance of getting the visa. My brother filed for me, not for my son, and my son is only on the petition as a member of the family. Can he answer “no” to the question or must he answer “yes”?

Mr. Lee Answers,
According to the Department of State, your son can answer either yes or no. It has amended its consular manual to say that someone who is the spouse or child of the principal beneficiary of a petition will not be making a misrepresentation by answering no to the question. Consular officers many times expect the answer yes, and the American Immigration Lawyers Association has taken the position that such a person may respond yes or no to the question, with neither response resulting in a finding of material misrepresentation.

4. Can I Leave on Advance Parole If I Have Already Received a Notice of Intent to Deny My Adjustment of Status Application?

I filed my I-485 adjustment of status application in 2016 based upon a labor certification by my employer. At the time of interview in October 2018, there were questions concerning my employer and my past qualifying experience. I have advance parole to leave the country, but do not know if I should use it at this time. I want to go back to China to visit my mother who is old.

Mr. Lee Answers,
Your situation would pose risk, and I would not recommend that you go out on advance parole. Customs and Border Protection (CBP) in this region has made known recently that while a notice of intent to deny would likely have no effect on your reentry under parole, CBP would not parole an individual whose adjustment of status application had been denied by the time that he or she is trying to reenter the country. In that situation, CBP would look to see if the I-485 was denied on criminal charges. Based on its initial review, it might decide to defer the inspection for 30 or 60 days to consult with U.S.C.I.S. and determine the nature of the denial while the individual addresses the denial with U.S.C.I.S. It would likely continue the deferred inspection if the applicant was making progress with U.S.C.I.S. to resolve the issue.

Q&A’s published on Lawyers.com and the Epoch Times on February 22, 2019 1. Can An Illegal Immigrant Become Legal After 13 Years of Living in the U.S.? 2. I’m On L-2 Dependent Visa and Want to Have a Work Permit to Work in U.S. 3. Clarification on The 3-Month Residency Requirement in the District When Submitting N-400.

1. Can An Illegal Immigrant Become Legal After 13 Years of Living in the U.S.?

Mr. Lee Answers:
Dependent upon the situation, an illegal immigrant can become legal after 13 years of living in the US. However, that presupposes that there is some basis other than the 13 years of residence. For example, an individual may be eligible for relief in the immigration court by showing 10 years continuous residence, good moral character, and that removal to another country would cause exceptional and extremely unusual hardship to a US citizen spouse, parent, or child. Other reliefs may be available, and your best move may be to consult an immigration lawyer about other possible options.

2. I’m On L-2 Dependent Visa and Want to Have a Work Permit to Work in U.S.

Is it necessary to apply EAD & social security number?

Mr. Lee Answers:
For an L-2 dependent to obtain a work permit, he or she must file for employment authorization on form I-765 application for employment authorization. Upon obtaining an employment authorization, the individual can apply for a working Social Security number. I do note that L-2 employment authorization is for spouses and not dependent children.

3. Clarification on The 3-Month Residency Requirement in the District When Submitting N-400.

 I am living in two states which are NC and SC. They are in same USCIS district according the information on USCIS website. Currently l am in NC since October and l will be living in SC during summer time then will be back to NC again.  Does it matter which state l apply for naturalization?  I have apartment lease and utilities on both state address.  

Mr. Lee Answers:
U.S.C.I.S. regards the three-month residency requirement to either be applicable to the state or to the U.S.C.I.S. field office’s jurisdiction. So in your case, you would be fulfilling the three month requirement whether in North Carolina or South Carolina as long as they both fall under the jurisdiction of the same immigration office.

Article: Immigration Procedure – 10 Possible Items Of Interest

As published in the Immigration Daily on February 19, 2019

We thought that the following might be of interest and that you might not know about them or at least some of them. If you do not, good reading –

1. Does an applicant on DS-160 have to answer “yes” where an immigrant petition has been filed on behalf of the parent or spouse? The Department of State has amended 9 FAM 302.9-4 (B) (8) to state that “an applicant who is the spouse or child of the principal beneficiary of a petition, even when named in the petition, would not make a misrepresentation by answering “no” to this question.” Consular officers many times expect the answer “yes”, so the American Immigration Lawyers Association (AILA) takes the position that a derivative beneficiary named on an immigrant petition may respond negatively or affirmatively to the question, with neither response resulting in a finding of material misrepresentation.

2. There is a new procedure for the consolidation of H and L visas for China beginning 3/1/19 as exclusive jurisdiction will only be in Beijing, Guangzhou and Shanghai. Chengdu and Shenyang will no longer be handling these cases.

3. The Pew Research Center currently estimates that the number of undocumented immigrants in the country fell from 12.2 million in 2007 to less than 11 million in 2016, and the number of illegal entries in 2017 was 310,000, the lowest of any year since 1971. So, where’s the national emergency?

4. What is the border? In a post by the American Immigration Council, the “border zone” encompasses 10 states in their entirety, touches dozens more, and contains 9 of the largest 10 cities in the country. Customs and Border Protection (CBP) has broad authority to operate within 100 air miles of any U. S. boundary, including setting up and operating immigration checkpoints on many routes within the 100 mile radius that eventually meets the border. Within 25 miles, agents have even more leeway such as entering private property without a warrant or permission. Based on news and other reports, there are 170 checkpoints with the vast majority spread across the Southwest border states.

5. U.S.C.I.S. reopened premium processing on February 19, 2019, for all H-1Bs filed on or before December 21, 2018. Such would apply mainly to H-1B transfers, amendments and concurrent filings since premium processing has been constantly open to extensions and recently to FY-2019 cap cases.

6. In looking at statistics on H-1Bs, a news report in the Los Angeles Times, “Immigrant tech workers struggle to get H-1B visas under Trump:’ I’ve never felt so helpless’” said that in 2017, 74% of all H-1B’s were approved, down from 87% the year before and the lowest approval rate in at least a decade. You can bet quite safely that 2018 results were even worse. From another source, the proportion of H-1B petitions denied increased by 41% from the 3rd to the 4 th quarter of FY- 2017. A major consequence of the increase in denials and the long waits is that many H-1B holders are now reluctant to change jobs because that means another adjudication by U.S.C.I.S.

7. Since June 2017, at least 14 lawsuits have been filed in federal courts around the country concerning H-1B denials. The plaintiffs are directly suing to federal court and bypassing the U.S.C.I.S. Administrative Appeals Office (AAO).

8. A suit was filed on 12/19/18 in the DC District Court on a H-1B extension denial without the parties going to the AAO, the plaintiff, a Minnesota finance and IT company, and the beneficiary a computer systems analyst in a position entitled “BI business analyst” or business intelligence business analyst. She had held H-1B status since October 2008 and had an approved I-140. The company’s stated requirements for the job were an MS in computer science, computer engineering, electrical engineering or related field +3 years as a technical analyst or similar analyst or consulting position involving business objects universes and reports. The denial was based upon the U.S.C.I.S. Service Center Director’s view that the occupation of computer systems analyst does not require a bachelors level of education or higher or its equivalent in a specific specialty.

9. Another H-1B suit filed in the same court on 10/16/18 and bypassing the AAO involved a large construction concern in Dallas filing an H-1B amendment/extension for the beneficiary as an assistant project manager in September 2017. The beneficiary, who had already been approved to work for the company under H-1B status as an equipment logistics engineer through June 2018, held an MS in construction management, and the employer’s stated requirement was a bachelors in construction management, engineering, or related. The Occupational Outlook Handbook (OOH) which is heavily relied upon by U.S.C.I.S. in determining H-1B specialty occupations, said that it was increasingly important for construction managers to have a bachelors degree in construction science, construction management, architecture or engineering. The denial was based on the U.S.C.I.S. Service Center Director’s view that, as per the OOH, the construction manager occupation is not a specialty occupation.

10. The liaison meeting of AILA and NY/NJ Customs and Border Protection (CBP) on 10/23/18 clarified that if an adjustment applicant is traveling on advance parole, and CBP learns that the application for adjustment of status to permanent residence has been denied when the person tries to reenter, CBP will not parole the passenger on the basis of the now denied I-485, but has discretion to defer the inspection. CBP will look to see if the I-485 was denied on criminal grounds. Based on CBP’s initial review, it may decide to defer the inspection for 30 or 60 days to allow CBP to talk to U.S.C.I.S. and determine the nature of the denial while the passenger addresses the denial with U.S.C.I.S. Once the initial deferred inspection period has ended, the passenger may be able to get a further extension if CBP believes the issue will be resolved favorably with U.S.C.I.S.

Q&A’s published on Lawyers.com and the Epoch Times on February 15, 2019 1. EAD I-140 Compelling Circumstances 2. How to Change Tourist Visa to Work Visa? 3. Extension of B1/B2 Visa

1. EAD I-140 Compelling Circumstances

I am on H-1B with I-140 approved (2014- EB2- India). My wife is facing medical issues and if I qualify, my intent is to apply for I-140 EAD Compelling circumstances. My wife had multiple miscarriages and last year she was hospitalized for 15 days for emergency. This year she had a minor surgery and again put on 100% bed rest by the doctor. Currently I travel 1-1/2 hr each way to my job. We cannot move as she has doctor visits every week. EAD will allow me to find a flexible job near to my house and take care of my wife in this difficult times. Question: 1. Do I qualify for EAD I140 Compelling circumstances. I wish to apply for EAD. I am looking for a competent attorney. 2. My h1b expires August 2019. What is my status on EAD if I have to travel abroad? What about stamping? 3. On EAD I may get any job which allows me to be flexible and close to my house to take care of my wife. What if after 1 year, I do not get an H-1B?

Mr. Lee answers:
Whether you qualify for an EAD based upon compelling circumstances will depend upon the view of U.S.C.I.S. As this is new relief without much of a track record, I could not inform you whether your situation would be seen as compelling circumstances although I suspect that it will be. An individual on the EAD who works for another employer is no longer in valid nonimmigrant status. It does not give travel privileges.  For that, you would have to make an application for advance parole, and such could be approved based on urgent humanitarian circumstances or where it would provide a significant public benefit.  If you must renew your H-1B after the year of employment authorization under the EAD, you would have to go abroad for non-immigrant visa processing. If you are denied an H-1B petition and are still in the States, you can request an extension of the EAD where there is still compelling need and the visa availability date is far away, or the visa availability date is reachable within one year before or after the visa bulletin final action date. However, if the H-1B petition is approved by U.S.C.I.S. and you are denied a visa when you try to go for visa stamping abroad, you would essentially be stuck overseas unless you are able to overcome the ground(s) of denial.

 2. How to Change Tourist Visa to Work Visa?

I am in tourist visa. I came in USA to take care of my son who is a Troy student and extremely injured from car accident in December 15.

I have to stay here for injured victim of car accident. I probably should quit the job in Nepal. I like to apply work visa.  Is it possible?

Mr. Lee answers:
Generally speaking, US immigration law does not allow employment authorization for humanitarian situations where there is no other basis for its allowance. If you are eligible for other types of application such as nonimmigrant or immigrant visas that allow an employment authorization or for political asylum, you may be able to obtain an EAD (employment authorization document).

3. Extension of B1/B2 visa

I need more time before I can submit an E2 visa application. My B2 visa will end in early March, I’m looking to extend.

Mr. Lee answers:
It may be possible for you to obtain a B-1 extension or B-1 change of status for the purpose of completing the arrangements for making an investment in the US which would make you eligible for E-2 Treaty investor status. You would generally have to inform U.S.C.I.S. of the progress of your investment and when you can be expected to perfect the investment. In addition, you would have to show evidence of intent to leave the country once your arrangements are concluded. 

Q&A’s published on Lawyers.com and the Epoch Times on February 8, 2019 1. How to Get My Girlfriend to Come to the U.S.? 2. Should I Apply for Citizenship? 3. Can C-1D Visa Holder Apply For an Asylum?

1. How to Get My Girlfriend to Come to the U.S.?

I have met a Dominican Republic lady and I would like to know how to get her to come to the United States.

Mr. Lee answers:
I will assume for purposes of your question that you are either a US citizen or permanent resident. If a US citizen, you generally have the choice of petitioning for her as a fiancée under K-1 visa or marrying her and petitioning for her to obtain an immigrant visa through form I-130 Petition for Alien Relative and later consular processing. If a green card holder, you could marry her and petition for her in the same manner. K-1 visa processing usually takes between nine months to a year; and I-130 processing/consular processing by US citizen one year and by a permanent resident two+ years. In addition, if your Dominican Republic lady has good reason to come to the US temporarily, she may be able to obtain the appropriate nonimmigrant visa at the American consulate or embassy.

2. Should I Apply for Citizenship?

I have been a Permanent resident since 1998. In 2009 and 2013 I spent more than 12 months outside the USA. Upon re-entering the USA I omitted this to the immigration officer and said I had been away for 3 months. Since 2016 I have lived in the USA permanently only making short trips abroad. I would like to apply for naturalization but wonder if it’s too risky to do so. What do you suggest?

Mr. Lee answers:
For preserving a residence in the US for naturalization purposes, a six-month absence has a rebuttable presumption that you have lost the residence. Absences of 12 months and more are almost conclusive evidence that the residence for purposes of naturalization is lost. That occurs even if the individual has obtained a reentry permit. I would suggest that you not apply for naturalization at this time as an application would be risky.

3. Can C-1D Visa Holder Apply For an Asylum?

I came to USA in March 2016 in C-1D Visa (cruise line job) from India, it’s been almost 3 years now am staying in US. My questions are Can I apply for an Asylum ? If I can, will marriage help me to adjust my status/ if yes how long it will take normally? If I go back to India before the decision of Asylum case, how it will affect my re-entry?

Mr. Lee answers:
Unless there are special circumstances, you are not eligible to apply for asylum as the application must be done within one year of the individual’s entry into the United States. You are eligible to apply for withholding of removal if you believe that you would be persecuted in your home country, but the burden of proof against you is higher and it does not lead to a green card. Marriage would not help you to adjust your status even if you have special circumstances that would qualify you for asylum since a C-1/D visa holder is generally not allowed to adjust status to permanent residence. If you go back to India after you have submitted an asylum case and before its decision, you would technically be barred from returning to the US because of your unlawful presence for over one year in this country.

Q&A’s published on Lawyers.com and the Epoch Times on February 1, 2019 1. Can I Attend H-1B Visa Interview With Employer A When H-1 Transfer to Employer B Is In Process? 2. Will I Be Issued a Visa After DNA Results Are Positive? 3. Out of Student Status

1. Can I Attend H-1B Visa Interview With Employer A When H-1 Transfer to Employer B Is In Process?

I am currently working as sub contractor with employer A and employer B has filed my h1 transfer I got RFE for this and employer B is working on resolving the RFE. Can I go to visa interview with my current employer while my H1 decision is still pending? Or if gets approved or rejected will it impact my visa interview?

Mr. Lee answers:
This situation could present problems and so is not recommended. A consular officer upon your notice that you actually wish to work for employer number two would likely tell you that you should wait until the H-1B for the second employer is approved before requesting the H-1B visa to be put in the passport. On the other hand, if you do not inform the consular officer of your plans and are given the visa and do not work for the first employer when you return to the States, you could be subject to a later charge of misrepresentation. You may wish to have a resolution one way or another before leaving the US for a visa interview. Premium processing is expected to return in February 2019 with U.S.C.I.S. for the fee of $1,410 under which the agency promises to reach your case for adjudication within 15 days or give you back the fee.

2. Will I Be Issued a Visa After DNA Results Are Positive?

Mr. Lee answers:
Whether you are issued a visa after DNA results are positive depends upon whether there are other inadmissibility bars to your immigrating to the US. I assume that this is a family based case as DNA results would otherwise not be relevant. Another question is whether the DNA test was requested by the US Consulate or Embassy or USCIS or whether you and your related party took an independent test. In the latter case, the result may not be given full validity by a consular officer.

3. Out of Student Status

I came to the US on a F1 student visa. During my time in the University I have dropped two semesters (at the end of the semester) after I found out that I would not make a GPA that will allow me to continue in the University. I was not aware that I could not do that. And on the third semester I was flagged and an advisor told me that I couldn’t do that. Once I met with an officer he told me to get a letter from my advisor stating that I am enrolled and I took classes each semester and I will be fine. I got the letter and for the next interview I gave it to a different officer which told me that it is useless now because I am in the removal process and I should wait until I heard back from them about a court date. I have been waiting for almost two years now and I did not get a court date. My question are : What are my chances of getting my status fixed?  Do I have a high chance of getting deported? And what I could do to prepare for the hearing.

Mr. Lee answers:
It is highly unusual that an individual would be in removal proceedings and not receive a notice to appear (NTA) within almost 2 years. It is entirely possible that U.S.C.I.S. has not moved in that direction. If you moved, it is also possible that you never received an NTA because of that. It does not appear from your question that you are still in school or in status if you are still in school, and if that is so, I would assume that you have been out of status for at least five months, the top limit for asking for student reinstatement. You appear to not be aware of your present status which would be essential for determining what are your options. You may decide to do an infopass with the local field office of U.S.C.I.S. to ascertain your status. You may also alternatively request a copy of all your information from U.S.C.I.S. under the Freedom of Information Act.

New H-1B Regulation “Registration Requirement For Petitioners Seeking To File H-1B Petitions On Behalf Of Cap-Subject Aliens” Becomes Final Changing The Order Of Selection But Delaying Pre-Registration System

As published in the Immigration Daily on February 1, 2019

The final rule will only have one component taking effect on April 1, 2019, the flip-flopping of the order of petition selection of U. S. Masters and higher degrees vis-à-vis bachelors and advanced foreign/U. S. for-profit institution degrees. The second part, the pre-selection system for organizations to register ahead of time for the opportunity to file cap subject petitions, has been postponed for this year.  Even in the proposed rule, U.S.C.I.S.  was hesitant on when it could be implemented, and many including this writer believed that it was nigh impossible for the system to come into being for this year’s H-1B selection (See “Article: Comment on U.S.C.I.S. New H-1B Proposed Regulation by Alan Lee, Esq., Immigration Daily, January 2, 2019).

Changing the order of selection by allowing all of the U. S. Master and higher degree cases to be put in the regular cap case selection, and then allowing the unselected to claim the U. S. Masters cap quota of 20,000+ numbers instead of running the U. S. Masters selection for the exclusive 20,000+ numbers first and then allowing the unselected to be put in the later regular cap selection was estimated by U.S.C.I.S. to yield another 16% or 5340 more numbers to U. S. Masters degree holders.

Was this a good strategy to favor those with U. S. advanced Masters or higher degrees? That is questionable as it is not merely a question of bachelors versus masters and higher degrees, but the exclusion of many persons who have had years of experience that those with recent advanced U. S. degrees do not have. Many with bachelor’s, master’s and PhD degrees from other countries have acquired overseas skills over the years in the STEM fields which are heavily in demand in the U. S. and other countries.

This writer believes that the change in regulation applies mainly to those who have just acquired U. S. Masters degrees, many of whom have no relevant experience other than internships or externships. While they are desirable for the advanced knowledge that they have acquired, those with bachelor’s or advanced degrees from other countries and years of working in a particular field are oftentimes more essential to petitioning organizations as they do not have as much of a learning curve as U. S. Masters graduates with little or no real life experience.

On the pre-selection system, the agency noted that, “USCIS is suspending the registration requirement for the fiscal year 2020 cap season to complete all requisite user testing of the new H-1B registration system and otherwise ensure the system and process are operable.” In response to comments, it is increasing the filing time period to 90 days instead of 60 days after selection, a change that would make it even more unlikely for the system to begin in FY 2020. In the final rule, it also eliminated the idea of staggered filings because of concerns over the potential for negative impact for beneficiaries relying on the existing cap gap provisions under which beneficiaries must still be in OPT status on the date of filing to be eligible for cap gap protections.

Article “U.S.C.I.S. Releases Trove Of Information In New Proposed Rule, “Registration Requirement For Petitioners Seeking To File H-1B Petitions On Behalf Of Cap-subject Aliens””

as published in the Immigration Daily on December 3, 2018.

U.S.C.I.S.’s newly proposed rule of December 3, 2018, “Registration Requirement for Petitioners Seeking to File H-1B Petitions on Behalf of Cap-Subject Aliens,” does more than announce a proposed regulation, but also discloses many relevant statistics concerning H-1B numbers.

The rule itself proposes to put into place an employer preregistration system under which organizations would be forced to register within a 14 day period for the chance to submit a new cap-subject H-1B petition within staggered 60 day time frames to be designated by U.S.C.I.S. if the preregistration request is selected. The preregistration in effect would replace the current H-1B selection process under which 85,000+ petitions are selected in the first 5 business days of April. A second facet of the rule allows U.S.C.I.S. to flip-flop the selection process of the U. S. Masters cases and the regular cap cases in an attempt to enhance the chances of U. S. Masters candidates. U.S.C.I.S. estimates that reversing the current procedure of first randomly selecting the U. S. Masters cap cases and allowing the remainder to also be considered in a subsequent regular cap case selection, and instead allowing all the Masters cases to be placed in regular cap case selection, and then allowing the remainder to claim the Masters cap quota of 20,000+ numbers, would yield a further 5340 numbers or 16% more to the U. S. Masters cap cases.

The two parts of the proposed regulation are considered separate by U.S.C.I.S., and the second part can go into effect even if there are technical difficulties with implementing the preregistration system. It seems unlikely that the first part will come into being for this coming H-1B season because of many obstacles including complexity but principally the timing – the time for comments to close is January 2, 2019, it will take much time for the agency to go through the tons of comments that are expected, the regulation will have to go through OMB to become final, and H-1B season must start on April 1, 2019. Any idea of delaying the start of the H-1B season would be horrendous given U.S.C.I.S.’s present inability to handle the current load of this past year’s new H-1B petitions. Even now, many H-1B petitions submitted in the first week of April 2018 remain unadjudicated.

Now to the numbers. There has always been question as to how many more H-1B petitions are selected than the announced 85,000 per year (65,000 for the regular cap and 20,000 for the U. S. Masters cap). Practitioners have variously attempted to guess the number as U.S.C.I.S. allows a number of petitions over 85,000 to be “wait listed” by estimating the number of petitions that will be denied, withdrawn, or otherwise found ineligible. The number is 12,198, the average for 5 years from FY 2013-17 according to the proposed rule. With an average selection of 97,198 petitions per year, and U.S.C.I.S. disclosures that it presently selects 13,495 over the usual 20,000 Masters cap candidates (33,495) leaving 63,703 regular cap selectees, rough estimates can be made when coupled with U.S.C.I.S. figures of an average of 192,918 petitions received (137,017 regular cap and 55,900 U. S. Masters) that historically, U. S. Masters comprise 34.46% and regular cases 65.54% of the selected cases; that when viewed through the prism of the 137,017 and 55,900 divided petitions, U. S. Masters were selected 60% and regular cases 46.5%; and that overall of the 192,918, U. S. Masters comprised 17.36% and regular cases 33%.

Under the proposal of flip-flopping the random selection process to give more numbers to the U. S. Masters cases, and using the same historical numbers, U. S. Masters would comprise 40% of the selected cases and regular cap 60%; that when broken down into their individual applied for categories, U. S. Masters would be selected at a rate of 69.47% and regular cases at 42.6%; and in looking overall at the historical average of 192,918 submitted petitions, 20% would be U. S. Masters and 33% regular cases.

The above numbers are approximate as U.S.C.I.S. only gave current statistics on the number of U. S. Masters cases selected and the author can only believe that the statistics are for one year. As FY 2017 is the most recent covered in the proposed rule, perhaps a better reading is done using that year. U.S.C.I.S. statistics show that it received 198,460 petitions of which 87,380 were from U. S. Masters and 111,080 from regular cases. It selected 96,301 petitions for the year. Using the same figures for selection of U. S. Masters cases, the percentage of U. S. Masters of the 96,301 selectees was 34.78% and regular cases 65.22%; that divided into the categories for which petitions were submitted, U. S. Masters were at 38.33% and regular cases 56.54%; and overall of the 198,460 submitted cases, U. S. Masters garnered 16.88% of the selections and regular cases 31.65%.

Would the numbers change dramatically given the proposed reversal of the random selection process? Not dramatically. Of the 96,301 selected cases for FY 2017, a flip-flopping would have left H-1B Masters at 40.32% and regular cases at 59.68%; that judged by the categories in which they applied, U. S. Masters would have been accepted at 44.4% and regular cases at 51.7%; and overall in the total 198,460 submitted petitions, U. S. Masters would have been picked at 19.57% and regular cases at 29%.

Looking forward, it would appear that the second part of the preregistration system proposed regulation is much more likely to be installed for this April than preregistration as it is an easy step to implement and U.S.C.I.S has made clear in the proposal that it can suspend the H-1B registration process merely through an announcement on its website while still reversing the order of counting the petitions towards the H-1B allocations. So it is entirely possible that the regulation could become final as late as March with only the second part coming into effect. Finally the author notes that those contemplating the filing of regular cap cases should not be discouraged as he was surprised to find that within the categories for which employers applied for their candidates, the approximate five-year average of selection for those applying under regular cap cases was 46.5%, and the most recent year given in the proposed regulation (FY-2017) showed a selection rate of 56.54%.