EIG Dispatch | February 13, 2018

US Headlines: Changes to Refugee Vetting Process / National Vetting Center Proposed / Public Benefits for Immigrants May Become a Factor in Visa Adjudication

Global Headlines: New Australian Skilling Fund and Temporary Skill Shortage Visa to Replace Former System / Albania Cooperates with European Union to Assist with Immigration Operations

Feature Story: H-1B Cap-When to File as a Change of Status vs. Consular Processing

US Headlines

Changes to Refugee Vetting Process. On February 1, 2018, USCIS and the Department of State implemented new procedures that standardize all refugee vetting processes to ensure principals, accompanying family members, and following-to-join refugees are vetted by the same standards. The new security measures are a result of a 120-day review mandated by an Executive Order which directed DHS to determine additional procedures to strengthen national security.

National Vetting Center Proposed. On February 6, 2018, President Trump signed a memorandum establishing a “National Vetting Center” aimed at increasing background checks performed of those seeking immigration benefits. The proposed Center would be a collaborative effort between the Department of Homeland Security, State Department, Justice Department and intelligence agencies. A plan for the Center’s processes and procedures is due in 180 days.

Public Benefits for Immigrants May Become a Factor in Visa Adjudication. The Trump administration is drafting new regulations that would allow the government to expand its definition of “public charge.” The potential rule allows the government to factor in a greater amount of public benefits than are now considered when adjudicating applications for visas and green cards. Currently, the government can only assess cash benefits (TANF). If the potential rule is approved, USCIS would analyze the use of additional public benefits during the two years prior to filing the application.

Genesis Claure, Paralegal

Global Headlines

New Australian Skilling Fund and Temporary Skill Shortage Visa to Replace Former System. Effective March 2018, the Temporary Work (Skilled) visa (subclass 457 visa) will be abolished and replaced with the new Temporary Skill Shortage (TSS) visa. Employers sponsoring foreign nationals for temporary and permanent TSS visas will be required to pay a levy to generate revenue for the Skilling Australians Fund.

There will be three options available under this new TSS visa program:

  • Short-Term Stream: for employers to source temporary overseas skilled workers in occupations included on the Short-term Skilled Occupation List (STSOL) for a maximum of two years (or up to four years if an international trade obligation applies)
  • Medium-Term Stream: for employers to source highly skilled overseas workers to fill medium-term critical skills for up to 4 years of employment, with eligibility to apply for permanent residence after 3 years, and
  • Labor Agreement Streams: for employers recruiting foreign nationals in accordance with a labor agreement, with the ability to apply for permanent residence

The latest reform will impose stricter limitations on eligibility for an employer-sponsored permanent skilled visa. These changes reflect the Australian Government’s ongoing efforts to maintain the integrity of its current immigration system, while also incentivizing employers to hire local talent to their workforce.

Albania Cooperates with European Union to Assist with Immigration Operations. This week Albania and the European Union (EU) police reached a draft agreement, allowing EU police to enter Albania to regulate and enforce immigration matters. The agreement signifies an ongoing alliance between both governments to expeditiously handle historically high migration rates by Albanians seeking asylum. This arrangement must still be approved by EU member states before ratifying, but European Commissioner for Migration and Home Affairs and Citizenship Dimitris Avramopoulos is hopeful that this agreement will inspire negotiations between other neighboring countries in the Western Balkans where migrant traffic is at its highest.

Anna Ksor Buonya, Attorney

Feature Story: H-1B Cap-When to File as a Change of Status vs. Consular Processing

Foreign nationals with H-1B Cap petitions often have questions regarding travel while filing. While the answer may seem straightforward, it depends on the type of H petition filed. There are two options: requesting a change of status or consular processing. Below is a summary that clarifies some of these complex concepts:

Considerations of Filing a Change of Status H-1B Cap Petition:

A foreign national whose H-1B petition is filed and approved as a change of status (COS) will automatically be in H-1B status on October 1, or once the petition is approved, whichever is later.

Travel Restrictions

When filing a COS H-1B petition, the foreign national can not travel internationally while the petition is pending with USCIS. If international travel occurs before the approval of the H-1B petition, USCIS will change the petition to be processed via consular processing. [See the next section for the implications of consular processing.]


As the beneficiary of an H-1B petition, foreign nationals are permitted to concurrently file for a change of status for their dependents. USCIS will typically adjudicate the H-1B and H-4 applications at the same time, and the dependents will automatically change to H-4 status on October 1, or once the application has been approved by USCIS, whichever is later.

Considerations of Filing an H-1B Cap Petition Under Consular Processing

The main difference between filing an H-1B Cap under consular processing (rather than as a change of status processing) is how the beneficiary’s status takes effect. While a change of status automatically occurs on October 1, under consular processing the beneficiary is required to travel internationally and apply for a visa at a US Consulate or Embassy to re-enter the U.S. in H-1B status. A foreign national can enter the U.S. in H-1B status as early as 10 days prior to October 1.

For beneficiaries currently abroad, their dependents may also apply for an H-4 visa using the H-1B approval notice. For beneficiaries currently in the US, dependents must accompany the principal applicant abroad and apply for H-4 visas to maintain their status.

Special Consideration for Individuals Relying on Cap-Gap Extension

Cap-gap allows those currently working in F-1 OPT that expires before October 1 to extend their work authorization until their H-1B status goes into effect on October 1. To use the cap-gap provision, the H-1B petition must be filed requesting a change of status, and the applicant will not be able to travel internationally while the petition is pending.

Questions? EIG is here for any questions or concerns you have regarding your case.

Happy Cap Season!

Naianka Rigaud, Attorney


Stephanie Cohen, Jeff DeCruz, Aisha Farooq, and Theresa Meehan