Delays for Foreign Workers’ Families May Result From Season of Immigration Change

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By: Katherine Smith

With the H-1B cap season upon us, the government continues to churn out substantial updates and changes that impact how this year’s H-1B cap season will progress, including new impacts on the foreign workers’ family members. As discussed in greater detail in our recent blog post, U.S. employers seeking to fill a position requiring a bachelor’s degree (or higher) in a specific field can file an H-1B visa application with U.S. Citizenship & Immigration Services (USCIS) on behalf of a foreign worker who meets those credentials. The number of H-1B visas issued annually is limited to 65,000, with 20,000 additional visas for those with U.S. master’s degrees.  The filing window opens on April 1 each year for an October 1 start date, and USCIS runs a random lottery selection system in early April to select cases for processing. 

Traditionally, USCIS selected 20,000 cases from the U.S. master’s degree pool and then selected another 65,000 cases from the pool at large.  Beginning this year, however, USCIS will reverse the order in which applications are drawn, choosing 65,000 cases from all applications first, and then picking 20,000 cases from U.S. master’s degree only cases.  This change is mostly welcomed by U.S. employers, especially those with many U.S. master’s degree applicants, as it is intended to increase the number of master’s cases selected.  The selection reversal is a result of the newly promulgated H-1B rules, which include a new electronic pre-registration system for H-1B cap cases.  USCIS has postponed the roll-out of the registration process until after this cap season, to the relief of many employers and immigration practitioners throughout the country.    

However, still in time for this year’s H-1B lottery, USCIS has announced changes to the process by which spouses and children of H-1B workers (those applying for H-4 status) file for their immigration status.  This development has been met with less optimism, and the changes signal longer processing times and expected delays for dependent spouses and children of H-1B workers. 

Effective March 11, 2019, all H-4 applicants (as well as others using Form I-539) must use the new version of Form I-539, which will be released that day.  The new version of Form I-539 will include a separate I-539A supplement for each additional applicant (e.g., minor child).  In addition, each family member must attend a biometric screening appointment and pay an additional fee of $85.  The new biometric screening requirement means that H-4 spouses and children will have to wait for appointments for fingerprints/photographs/iris scans before their applications can progress.  Moreover, those H-4 spouses who are eligible to work may experience corresponding delays in their applications for employment authorization (EADs). 

These new changes bring more uncertainty to the timeline and process by which these cases will be adjudicated, and may also bring about travel and work delays. As a result, working with legal counsel to navigate these issues is strongly recommended.

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