October Immigration Update: H-1B premium processing, new interview requirements, and I-9 update

By Tejas Shah and Karlie Dunsky - Franczek Radelet P.C.

October 4, 2017

H-1B premium processing restoration: After temporarily suspending premium processing on all H-1B petitions in early April 2017, USCIS has incrementally restored this benefit over the last 6 months to various application categories.  On October 3, 2017, the agency announced that it restored premium processing to all H-1B petitions effective immediately. Premium processing is therefore now available to all pending and new H-1B petitions, including H-1B transfers filed by cap-subject employers.

New employment-based adjustment interview requirement: On August 28, USCIS announced that it was expanding interview requirements for adjustment of status, or green card/permanent residency, applications to include employment-based categories.  This change became effective on Oct. 1, 2017.

USCIS has stated that only applications based on a form I-140 filed on or after March 6, 2017, are subject to the new interview requirement. Adjustment of status applications based on I-140 visa petitions filed before that date will be adjudicated following previous protocols, wherein interviews were conducted on a very small minority of employment-based adjustment applications.

USCIS leadership has indicated that the purpose of these interviews is to verify the admissibility of individuals under immigration law and to authenticate the documents presented in support of an application, rather than re-adjudicating the I-140 petition. However, the actual implementation of the requirement is heavily contingent on the training and oversight provided to individual officers.  Concerns remain about what will be the impact of the interview requirement on processing timelines, and about the consequences of the interviews being conducted by officers who have relatively new familiarity with the form I-140 and the potential that officers may second guess USCIS Service Center decisions. The new requirement is of particular significance to individuals whose roles change after the I-140 was submitted, as officers requiring exact adherence to the position described on the I-140 may unfairly penalize employees whose jobs have changed in an insubstantial manner due to normal career transitions. USCIS guidance has thus far not addressed the possibility of redress for employees and employers whose adjustment of status applications are stuck in lengthy processing backlogs or are subject to erroneous decisions.

Employers should note that the interview requirement only applies to employees and their derivative family members, and does not require an appearance by the employer. The interviews are also expected to occur at the local USCIS office closest to the intended place of employment listed on the form I-140.

New I-9 form:  USCIS released a new version of the form with minimal changes to the previous version. The revised form was available on July 17, 2017 and became mandatory for use on Sept. 18. Employers should ensure that they are using the newest version of the form when verifying new hires’ work authorization and reverification where a new I-9 form is required.

Employer Insights:

• Employers needing to quickly obtain approval of H-1B transfers or extensions are now eligible to do so again.

• Considering the potential impact of the interview requirement on the outcome of green card applications, employers and employees are strongly encouraged to carefully evaluate the consequences of any changes in employment during the green card process and to strongly consider legal representation during an applicant’s interview.

• Employers are also advised to carefully consider situations where an individual’s temporary nonimmigrant status lapses and the employee’s status in the United States is contingent upon the outcome of an adjustment application.

• Employers and employees should consider the possibility of concurrently filing an I-140 and I-485, where eligible, given the potential for extended processing timeframes for the I-485.