United States: Recent USCIS Developments

USCIS Extends and Expands Suspension of H-1B Premium Processing

Earlier this week, U.S. Citizenship and Immigration Services (USCIS) announced that it will extend the suspension of Premium Processing for all pending FY 2019 H-1B cap cases until Feb. 19, 2019. This suspension, which was put into effect in April, was originally expected to last only until Sept. 10, 2018. In addition, USCIS announced that effective Sept. 11, 2018, it would expand the suspension of  Premium Processing to cover all H-1B change of employer and H-1B amendment filings. This suspension is also expected to last until at least Feb. 19, 2019.

The continued suspension of FY2019 H-1B cap case Premium Processing will impact recent graduates in F-1 status working pursuant to the H-1B cap-gap authorization period. Employment authorization for qualified cap-gap beneficiaries expires on Oct. 1, even if the beneficiary’s H-1B cap case remains pending after that date. While they will lose their cap-gap employment authorization, these individuals will be permitted to remain in the United States until their H-1B petitions are adjudicated. We will work with you to identify those employees in cap-gap status who may be affected by this suspension.

USCIS will continue to accept Premium Processing requests for H-1B change of employer petitions and H-1B amendments through Sept. 10, 2018. If you intend to sponsor an H-1B nonimmigrant for one of these case types and wish to use Premium Processing, please let us know right away so we can make every effort to have the case filed with USCIS by Sept. 10. Additionally, remember that an employee already in H-1B status can begin working for you as soon as your H-1B change of employer petition is received by USCIS under the rules of H-1B portability. You do not need to wait for an approval before having the H-1B employee begin work.  

USCIS will continue to accept Premium Processing requests for extensions of H-1B status with the same employer (with no change in the terms and conditions of employment), and for H-1B petitions filed by a qualifying cap-exempt employer during the suspension period. Premium Processing will also remain available for other Premium Processing-eligible nonimmigrant petitions, including L-1, O-1 and TN petitions, and for eligible I-140 petitions.

USCIS Again Allows STEM OPT Holders to Train at Third-Party Sites

In an abrupt change in policy, USCIS  now advises that employers may again utilize the services of STEM OPT individuals who are employed by a contractor or consulting firm and who are temporarily sent to a company to perform services.

As you are likely aware, in May 2016 the Department of Homeland Security (DHS) finalized a rule permitting recent graduates with degrees in science, technology, engineering and mathematics (STEM) fields to apply for an additional 24 months of Optional Practical Training (OPT) beyond the initial 12-month OPT period. In order to qualify for the 24-month OPT extension, the student must be employed by an employer enrolled in E-Verify, and the employer must have a bona fide “employer-employee” relationship with the student. Furthermore, the employer and employee must execute a Training Plan (Form I-983) that clearly articulates the STEM OPT student’s learning objectives and affirms the employer’s commitment to helping the student achieve those objectives.  

In its response to public comments on the 2016 STEM OPT rule, DHS cast doubt on whether consulting firm arrangements (in which a STEM OPT student is sent to a third-party site to perform services) could satisfy the STEM OPT rules, as consulting companies may not be able to provide its STEM OPT student employees with the required in-person training at their clients’ third-party locations. Several months ago in a post on its website, USCIS has advised that such arrangements are prohibited, stating that the training experience may not take place at the place of business or worksite of the employer’s clients or customers because Immigration and Customs Enforcement (ICE) would lack authority to visit such third-party sites in order to determine if such training is taking place. (ICE has not commented on whether it agrees with that assertion.)  However, USCIS has again shifted its stance on this issue, confirming that STEM OPT participants may engage in training that takes place at a site other than the employer’s place of business as long as all of the training obligations are met. USCIS has advised that it will review on a case-by-case basis whether the student will be a bona fide employee of the employer signing the Training Plan, and will verify that the employer that signs the Training Plan is the same entity that employs the student and provides the training experience.

In light of this change, employers are now clearly permitted to utilize the services of STEM OPT employees of contractors or consulting companies. However, please keep in mind that the contractor is responsible for providing the STEM worker with the required training throughout the duration of the consultant’s assignment at your worksite.

Uncertain Future of TN Classification

Earlier this week, the United States and Mexico announced a “preliminary Trade Agreement” that will purportedly modernize and replace the North American Free Trade Agreement (NAFTA). Canada (the third NAFTA member state) will also join discussions on a replacement for NAFTA in the coming weeks.

There has been no indication of how a revised trade agreement among Mexico, United States and Canada will affect the TN category. Created under NAFTA and by the U.S.-Canada Free Trade Agreement that preceded NAFTA, the TN nonimmigrant classification permits qualified Canadian and Mexican citizens to work temporarily into the United States in certain designated professional occupations. Details of any immigration category for professionals under the revised trade agreement are not yet known.

As for current TNs, it is likely that USCIS will allow individuals currently in valid TN status to continue working for the remainder of their course of authorized stay, but will not process any extensions or new TN applications. If this occurs, we will work with you to explore all other available visa options for your TN employees.  It is also possible (although unlikely, without congressional approval) that with the rescission of NAFTA, the now-superseded U.S.–Canada Free Trade Agreement, which created a class of professional Canadian nonimmigrants, will automatically come back into effect, allowing Canadian citizens to work in the United States in designated professional occupations. 

We will continue to monitor this fluid situation and provide additional updates as soon as they become available.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions