Some information on recent developments in the practice of business immigration law appears below.
8/29/2018 - USCIS Expands Unavailability of Premium Processing
USCIS has announced that premium processing will remain unavailable for all H-1B cap cases (filed in April 2018) until February 19, 2019. Also, starting on September 11, 2018, premium processing will be unavailable for most H-1B cases filed at the Vermont or California Service Centers. A narrow exception applies to cap-exempt cases filed exclusively at the California Service Center. Premium remains available for extensions filed in the Nebraska Service Center.
8/17/2018 - USCIS Website Now Permits Third Party Placement for STEM OPT Students
Early in 2018, USCIS amended its website to suggest that STEM OPT students may not work at third party sites. This policy change received widespread criticism for many reasons, one of which is that USCIS is not permitted to make substantive rule changes through website updates. The agency now appears to have acknowledged this flaw, clarifying that there is no blanket prohibition on STEM OPT students working at third party sites so long as supervision by the actual employer continues.
8/15/2018 - September Visa Bulletin Issued
The Department of State has released the Visa Bulletin for September 2018. USCIS has confirmed that all employment-based adjustment of status applicants must use the "Final Action Dates" chart. However, family-based adjustment of status applicants can use the "Dates for Filing" chart. The cutoff for EB-3 India has retrogressed significantly to January 1, 2003, while that of EB-2 India has also been pushed back to January 1, 2007. Forward progression of dates is expected with the start of the new fiscal year in October. … [link]
8/10/2018 - USCIS Slightly Revises Memo on Unlawful Presence for F/J Students
As we reported earlier, under a new USCIS policy, F/J students who are found to be out of status will also be deemed to be "unlawfully present" from the date that the status lapsed. Despite widespread opposition to this policy shift, USCIS has insisted on proceeding with this flawed policy. A revised memo issued today provides a small concession to students: those applying for reinstatement will not be considered "unlawfully present" while the applicaton is pending.
8/8/2018 - USCIS Expands the Scope for Denial Without RFE/NOID
Effective September 11, 2018, USCIS will adopt a revised policy towards the issuance of RFEs and NOIDs. In the past, USCIS would only issue a denial without RFE/NOID for statutory denials (such as a denial where a nonexistent benefit is requested). Under this standard, very few cases were denied without an RFE. However, under the new policy, a case can be denied if it is lacking "initial evidence," which is essentially evidence that is explicitly required under the INA, USCIS regulations, or USCIS form instructions. Even under the new policy, so long as applicants follow form instructions, cases should not be denied without an RFE.
7/30/2018 - NTA Memo Not in Effect Yet
As described earlier, the USCIS's latest NTA memo would place a monumental burden on the immigration framework, by placing thousands of additional people in deportation proceedings. Not surprisingly, USCIS needs to formulate operational guidelines on how to actually enforce the memo. The agency has recently announced that those guidelines have not been finalized yet, which means that the NTA memo is effectively postponed for some time. … [link]
7/23/2018 - August Visa Bulletin Issued
The Department of State has released the Visa Bulletin for August 2018. USCIS has confirmed that all employment-based adjustment of status applicants must use the "Final Action Dates" chart. However, family-based adjustment of status applicants can use the "Dates for Filing" chart. The cutoff for EB-3 India has moved to January 1, 2009, while that of EB-2 India remains static at March 15, 2009. … [link]
7/6/2018 - USCIS Expands Policy for Issuing Notices to Appear (NTAs)
USCIS has the authority to issue a Notice to Appear (NTA), which requires an alien to appear before an immigration judge to determine whether she should be removed from the United States (colloquially known as "deportation"). In a recent policy memorandum, USCIS has stated that it will issue NTAs in cases where an alien has committed fraud, criminal acts, or other acts showing a lack of good moral character (as part of a naturalization application). Most troublingly, the memo also says that USCIS "will" issue an NTA where a petition or application denial leads a nonimmigrant to fall out of status. An alien who has been issued an NTA cannot just leave the country on her own. Rather, she must obtain voluntary departure or attend the immigration hearing. If this policy is enforced, it will cause havoc for many H and L nonimmigrants whose applications are denied. … [link]
6/20/2018 - Trump Abandons Policy of Separating Undocumented Children from their Parents
Bowing to worldwide condemnation, President Trump cancelled his earlier order under which DHS was separating children from undocumented adults who had been charged with illegal border crossing. The new policy requires families to be kept as a unit as they go through immigration/removal proceedings. The locations of previously separated children remains largely unknown in most cases, affecting about 3000 children. … [link]
6/19/2018 - July Visa Bulletin Issued
The Department of State has released the Visa Bulletin for July 2018. USCIS has confirmed that all employment-based adjustment of status applicants must use the "Final Action Dates" chart. However, family-based adjustment of status applicants can use the "Dates for Filing" chart. The cutoff for EB-3 India has jumped by 6 months to November 1, 2008, while that of EB-2 India has also progressed to March 15, 2009. … [link]
6/12/2018 - USCIS Annnounces Update on Receipt Notices for Form I-751 and Form I-829
Green card holders who apply as spouses of US citizens or under the EB-5 category only receive conditional green card. A separate filing (I-751 or I-829) must be done to lift those conditions. Previously, the receipt notice for that separate filing showed proof of continued GC status for 12 months. Per USCIS, that period is now 18 months. … [link]
6/8/2018 - Anti-OPT Lawsuit, Washington Alliance of Technology Workers v. DHS, Lives On
An anti-immigrant group, Washington Alliance of Technology Workers, previously sued DHS claiming that the OPT program should be repealed because DHS did not have Congressional authorization to implement the program. That case was dismissed in district court, but the U.S. Court of Appeals for the District of Columbia has remanded a part of the decision back to the district court. The district court will now re-assess whether the OPT program is statutorily authorized. … [link]
6/1/2018 - Members of Congress Urge USCIS to Back Off on H-4 EAD Rescission
Led by Indian-American House Representative Pramila Jayapal, 130 Congressional representatives have signed a letter to USCIS urging the agency to back off from its plan to end the H-4 EAD program. Interestingly, the letter has been issued by a bi-partisan group of representatives that spans the range of political ideology, from extremely progressive (e.g., Jerrold Nadler) to extremely reactionary/conservative (e.g., Peter T. King). The letter has had no immediate effect, as a recent court filing by the Department of Homeland Security indicates that the agency is planning to go ahead with the H-4 EAD repeal as planned. … [link]
5/25/2018 - USCIS Proposes Rule to Remove the International Entrepreneur Rule
Under the Obama administration's efforts to spur economic growth, USCIS had created an avenue for certain foreign entrepreneurs to come to the United States and work as parolees: the International Entrepreneur (IE) Rule. In June 2017, the new Trump administration tried to delay the implementation of the IE Rule. In December 2017, a district court vacated that attempt to delay the rule, meaning that the IE rule remains today a valid option for incoming entrepreneurs. USCIS has now proposed a rule to conclusively end the program. Public comments to the proposal will be accepted until June 28, 2018, after which time USCIS will begin the process of rescinding the IE rule once and for all. … [link]
5/19/2018 - USCIS Issues Reminder Regarding Loss of OPT Due to Change in Program
USCIS has issued a reminder to F-1 students on Optional Practical Training (OPT) that transferring to another school or beginning study at another educational level (for example, beginning a master’s program after completing a bachelor’s degree) automatically terminates their OPT as well as their corresponding employment authorization document (EAD). A student who successfully starts a new program would not lose status, but would lose the prior OPT.… [link]
5/16/2018 - USCIS Completes Data Entry of Fiscal Year 2019 H-1B Cap Subject Petitions
USCIS has completed data entry for all fiscal year 2019 H-1B cap-subject petitions, and will now begin returning all H-1B cap-subject petitions that were not selected.… [link]
5/11/2018 - June Visa Bulletin Issued
The Department of State has released the Visa Bulletin for June 2018. USCIS has confirmed that all employment-based adjustment of status applicants must use the "Final Action Dates" chart. However, family-based adjustment of status applicants can use the "Dates for Filing" chart. The cutoff for EB-3 India is May 1, 2008, while that of EB-2 India is December 26, 2008. Retrogression of these categories is expected in the coming months, until a new batch of visa numbers is available in October with the start of the new government fiscal year.… [link]
5/10/2018 - USCIS Redefines Unlawful Presence for F, J and M Status Students
USCIS has issued a memorandum redefining when F, J and M students are considered unlawfully present (UPL). In the past, such a student would only accrue unlawful presence after being found out of status by an immigration official (e.g. USCIS or an immigration judge), or after completing a university program and any post-completion period. Now, effective August 9, 2018, an F, J or M student will also accrue unlawful presence the day after the student stops studying or working as required by the student's status, or otherwise engages in an unauthorized activity. This additional factor is significant because whether a particular student has engaged in unauthorized work or ceased a course of study can be a matter of interpretation. The prior standard for unlawful presence involved clear, objective indications that status had ended. The new standard creates uncertainty, which means that students must coordinate with their DSOs to ensure maintenance of status. 6 months of unlawful presence leads to a 3 year bar on re-entry into the US, while 12 months of UPL leads to a 10 year bar.… [link]
4/22/2018 - USCIS Website States that STEM OPT Students May Not Work at Third Party Sites
USCIS has updated its STEM OPT website to state that STEM OPT students may not work at third party worksites. The reasoning utilized by USCIS -- that ICE cannot verify employment at third party sites, even if such sites are mentioned on the STEM OPT student's training plan -- is specious at best. Also the website change is a substantive rule that has not gone through proper notice-and-comment rulemaking, which makes it ripe for challenge in federal court.… [link]
4/12/2018 - H-1B Cap Reached for Fiscal Year 2019
USCIS has announced that it received 190,000 applications under the H-1B lottery, which allows for up to 85,000 filings. As in the past, the demand for H-1B visas greatly outstrips supply. USCIS conducted the selection process for the master’s cap of 20,000 visas first. All unselected master’s cap petitions then became part of the random selection process for the regular 65,000 cap.… [link]
3/20/2018 - Premium Processing Service Suspended for H-1B Cap Cases
In an abrupt announcement, USCIS has announced that it will not accept premium processing for H-1B cap cases until September 10, 2018. Non-cap cases are unaffected by the change. … [link]
3/16/2018 - April 2018 Visa Bulletin Issued
The Department of State has released the Visa Bulletin for April 2018. USCIS has confirmed that all employment-based adjustment of status applicants must use the "Final Action Dates" chart. However, family-based adjustment of status applicants can use the "Dates for Filing" chart. EB-3 India has progressed to February 1, 2008, while EB-2 India has moved forward by a week to December 22, 2008. … [link]
3/1/2018 - Scheduled Date for Proposed Rule to Cancel H-4 EAD Program Postponed to June 2018
The DHS has confirmed in a statement filed in a civil action by an anti-immigration group (Save Jobs USA v. DHS) that the agency's proposed rule to cancel the H-4 EAD program will not be published until June 2018. Once the proposed rule is published in the Federal Register, all interested parties will be given an opportunity to submit public comment on the proposal. Under the Administrative Procedure Act, the agency will be required to consider substantive comments before finalizing the rule. Though DHS has made its intention to repeal H-4 EAD quite clear, when and under what conditions that will happen remain to be seen.… [link]
2/23/2018 - USCIS Issues Memorandum Requiring Contracts and Itineraries for H-1B Petitions Involving 3rd Party Worksites
USCIS has issued a memorandum summarizing its current position on H-1B petitions filed on behalf of employees working at third party sites pursuant to one or more subcontracts. The memorandum repeals a few outdated memos from the mid-1990s that attorneys had used in opposition to challenges from USCIS with respect to third party placement. The memorandum does not contain any significant changes to USCIS's current posture towards third party placements. Still, it could serve as an indication of the agency's desire to subject such cases to higher levels of scrutiny.… [link]
2/21/2018 - March 2018 Visa Bulletin Issued
The Department of State has released the Visa Bulletin for March 2018. USCIS has confirmed that all employment-based adjustment of status applicants must use the "Final Action Dates" chart. However, family-based adjustment of status applicants can use the "Dates for Filing" chart. EB-3 India has progressed by a month to January 1, 2007, while EB-2 India has moved forward by a few weeks to December 15, 2008. … [link]
1/17/2018 - February 2018 Visa Bulletin Issued
The Department of State has released the Visa Bulletin for February 2018. EB-2 India has progressed slightly from November 22, 2008 to December 8, 2008. EB-3 India has moved forward by a month to December 1, 2006. Also, the Visa Bulletin contains forecasts that EB-3 India will progress by 1 to 3 months and EB-2 India will inch up by several weeks in the next few visa bulletins.… [link]
12/30/2017 - President Trump Takes Aim at the H-1B Program
An article in McClatchy reveals that Trump administration officials are considering a policy change that would cancel the 1 and 3 year extensions available for any H-1B worker who has maxed out the normal 6 year allocation for H-1B status. Those extensions are safeguarded under the American Competitiveness in the 21st Century Act (AC21), an act of Congress. Only Congress can repeal AC21, but the Trump proposal is considering whether the phrase "may grant" in AC21 leaves room for USCIS to disregard the 1 and 3 year extension options. We have analyzed the language of AC21 and we are confident that the administration's interpretation is very tenuous and (if implemented) is very unlikely to survive a legal challenge. It should also be noted that the proposal is at a very early stage, and may not even become an official rule proposal by USCIS. … [link]
12/18/2017 - January 2018 Visa Bulletin Issued
The Department of State has released the Visa Bulletin for January 2018. USCIS has confirmed that all employment-based adjustment of status applicants must use the "Final Action Dates" chart. However, family-based adjustment of status applicants can use the "Dates for Filing" chart. The Final Action Date cutoff for EB-2 India has progressed slightly to November 22, 2008, while EB-3 India has creeped forward to November 1, 2006. … [link]
12/15/2017 - The H-4 EAD Rule is Officially on the Chopping Block
The agency has submitted a proposed rule, entitled "Removing H-4 Dependent Spouses from the Class of Aliens Eligible for Employment Authorization", to the White House's Office of Management and Budget (OMB). After the OMB's review, around March 2018, USCIS will officially propose the rule in the Federal Register. Interested parties will be able to submit comments on the rule through the regulations.gov website. After the comment period is over, USCIS will take several months to consider all of the comments and finalize the rule. Even if the H-4 EAD program is ultimately repealed, it would most likely be at least 9-12 months from now before the repeal takes effect.… [link]
12/15/2017 - USCIS Intends to Significantly Revise the H-1B Program
Around October 2018, USCIS intends to issue a rule proposal that would revise the regulatory definition of "specialty occupation" to favor "the best and the brightest" as per the requirements of President Trump's "Buy American Hire American" executive order. The USCIS proposal would also codify the Neufeld Memo's provisions on employer control, with possible changes. Another proposal, to be issued in February 2018, would require pre-registration for filers under the H-1B lottery. That same proposal was first considered in 2011 but was abandoned by USCIS at the time. In any case, none of these proposals will be implemented in time for the April 2018 cap season.… [link]
12/14/2017 - USCIS Forced to Reinstate International Entrepreneur Rule
Under President Obama, USCIS issued the International Entrepreneur Rule (IER), which would provide an unlimited number of international entrepreneurs a new avenue to apply for parole, enter the U.S., and use American investments to establish and grow start-up businesses. On January 25, 2017, President Trump issued Executive Order 13767, seeking to cancel the IER. A federal district court has now found that cancellation to be void. The IER remains available to applicants at present, although USCIS plans to formally rescind the rule soon.… [link]
11/22/2017 - December Visa Bulletin Issued
The Department of State has released the Visa Bulletin for December 2017. USCIS has confirmed that all employment-based adjustment of status applicants must use the "Final Action Dates" chart. However, family-based adjustment of status applicants can use the "Dates for Filing" chart. The Final Action Date cutoff for EB-2 India is November 1, 2008, while EB-3 India is October 15, 2006. … [link]
11/19/2017 - Rumors Abound that USCIS Plans to Repeal the H-4 EAD Rule
A recent article in the San Francisco Chronicle cited unnamed sources who claim that the USCIS is considering a rule that would repeal an earlier rule from two years ago that permitted certain H-4 nonimmigrants to apply for employment authorization (EADs). An anti-immigrant group has challenged the H-4 EAD rule in court. While that lawsuit is likely to fail on constitutional standing grounds, an "amicus" filing by the Trump DOJ in that case has signaled that the administration may seek to rescind the H-4 EAD rule. Unnamed sources in the Chronicle article claim that a draft repeal is being circulated. It should be noted that even in the worst case scenario, it would take at least 6 months or so for USCIS to go through the necessary rulemaking process (required by the Administrative Procedure Act) to effectuate the repeal. And it is far from certain at this time that the repeal will be issued at all.… [link]
11/15/2017 - The House Judiciary Committee Passes H.R. 170 - Protect and Grow American Jobs Act
The House Judiciary Committee has passed H.R. 170, the Protect and Grow American Jobs Act, sponsored by Rep. Darrell Issa (R-Calif.). The bill is expected to pass a full House vote, but its fate before the Senate is uncertain. Currently, certain employers that employ a large number of H-1B workers are classified as "H-1B dependent" and must abide by heightened compliance requirements. Those requirements are relaxed for H-1B workers who have a Master's degree or earn over $60,000 per year. The Issa bill would raise the $60,000 figure to $100,000. Contrary to misreporting by certain media outlets, the bill does not establish a $100,000 floor for all H-1B workers.… [link]
10/24/2017 - USCIS Rescinds Memorandum Regarding Deference to Prior Approvals in Extension Cases
On April 23, 2004, USCIS issued a memorandum with the common-sense dictate that adjudicating officers should essentially apply a lower level of scrutiny to a nonimmigrant petition where a prior petition involving the same parties and circumstances had already been approved. As part of the recent trend by USCIS to toughen adjudications, that earlier memo has now been rescinded. Each petition will now be considered on its own merits. H-1B workers who have been working for the same employer for many years can expect slightly higher denial rates because of this latest action. … [link]
10/13/2017 - November Visa Bulletin Issued
The Department of State has released the Visa Bulletin for November 2017. USCIS has confirmed that all employment-based adjustment of status applicants must use the "Final Action Dates" chart. However, family-based adjustment of status applicants can use the "Dates for Filing" chart. EB-2 China has progressed by three weeks to June 15, 2013. EB-2 India has also progressed by three weeks, to October 8, 2008. … [link]
9/28/2017 - USCIS to Resume Premium Processing for All H-1B Case Types
USCIS has unofficially announced that it will resume premium processing for all case types within the next week. Recently the agency had announced the resumption of premium processing for Fiscal Year 2018 cap cases. The upcoming announcement will make all H-1B cases eligible for premium, regardless of type. … [link]
9/25/2017 - President Trump Expands Travel Ban
The President has issued a proclamation (similar to an executive order) that will impose new restrictions on entry to the U.S. for citizens of Chad, Iran, Libya, North Korea, Somalia, Syria, Venezuela and Yemen. The change goes into effect on October 18, 2017. The Supreme Court had already been considering a challenge to the earlier iteration of the travel ban, and is expected to possibly reject the challenge as moot because the new ban includes non-Muslim majority countries. … [link]
9/18/2017 - USCIS to Resume Premium Processing for FY 2018 Cap Cases
USCIS has continued the piece-meal resumption of premium processing service. Now, all Fiscal Year 2018 cap cases can be upgraded to premium processing. The agency plans to resume premium processing for all other remaining H-1B petitions not subject to the FY 2018 cap, as agency workloads permit. … [link]
9/15/2017 - October Visa Bulletin Issued
The Department of State has released the Visa Bulletin for October 2017. USCIS has confirmed that all employment-based adjustment of status applicants must use the "Final Action Dates" chart. However, family-based adjustment of status applicants can use the "Dates for Filing" chart. Notably, EB-1 (China) and EB-1 (India) have become current. Also, EB-2 (India) has advanced to September 15, 2008, while EB-3 (India) will stay static at October 15, 2006.… [link]
9/5/2017 - Rescission Of Deferred Action For Childhood Arrivals (DACA) Program
The DHS has announced that it has begun phasing out the DACA program. Current DACA recipients will be permitted to retain both the period of deferred action and their employment authorization documents (EADs) until they expire, unless terminated or revoked. However, initial DACA applications filed after September 5, 2017 will not be entertained. Other types of applications are being phased out. The DACA program was established as part of President Obama's plan for immigration relief. The program is now being pared down in response to President Trump's decision to end the program within 6 months.… [link]
8/28/2017 - USCIS to Expand In-Person Interview Requirements to Employment-based Cases
Effective October 1, USCIS will begin to phase-in interviews for employment-based I-485 adjustment applications. In the past, I-485 interviews were restricted mostly to family-based cases. The change in policy is in response to President Trump's Executive Order 13780, “Protecting the Nation From Foreign Terrorist Entry Into the United States.”… [link]
8/18/2017 - USCIS Defines “Affiliate” and “Subsidiary” for Purposes of H-1B ACWIA Fee
The American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) establishes a fee that certain petitioners must pay when filing an H-1B petition. The fee is either $750 or $1500 depending on the size of the petitioner. USCIS has clarified that the employees of the petitioner's parent company do not count for ACWIA purposes, but employees of the petitioner's affiliates and subsidiaries do.… [link]
8/14/2017 - September Visa Bulletin Issued
The Department of State has released the Visa Bulletin for September 2017. EB-2 (India) has progressed to August 22, 2008, and EB-2 (China) has changed to May 15, 2013. Meanwhile, EB-3 (China) has remained static at January 1, 2012, while EB-3 (India) has progressed to October 15, 2006. As in prior months, all family-based and employment-based adjustment of status applicants must use the "Final Action Dates" chart.… [link]
8/4/2017 - DOL Proposes Longer ETA Form 9035 (Labor Condition Application or LCA)
The Department of Labor has proposed a revised version of ETA Form 9035, more commonly known as the Labor Condition Application (LCA). The new version of the LCA expands on the quantity of information that must be included on the form and contains fuller descriptions of sponsoring employers' compliance obligations. The revised form has been issued in an attempt to comply with President Trump's directive for agencies to better protect American workers and combat visa fraud.
7/25/2017 - USCIS Partially Resumes Premium Processing Service
USCIS has begun a piece-meal approach to resuming H-1B premium processing service, which was suspended when the agency was inundated with filings (in response to long adjudication times for H-1B filings). Premium processing will resume for petitions that are cap-exempt because the petitioner is an institution of higher education, a nonprofit related to or affiliated with an institution of higher education, or a nonprofit research or governmental research organization. Premium processing service will be expanded to other petition types in the coming months.… [link]
7/19/2017 - USCIS Returns All Unselected FY2018 H-1B Cap Cases
Approximately three months after conducting the lottery for the Fiscal Year 2018 H-1B cap, USCIS has confirmed that all cap rejected cases have been returned to petitioners or their attorneys. The next opportunity to file an H-1B cap case begins on April 1, 2018, for employment starting on October 1, 2018.… [link]
7/15/2017 - August Visa Bulletin Issued
DOS has released the Visa Bulletin for August 2017. The bulletin notes that the priority date cut-offs in the EB-2 category for various countries (Worldwide, El Salvador, Guatemala, Honduras, Mexico, and Philippines) have retrogressed, but will return to Current status in October 2017 when a new allocation of visas will be available. The final action date for EB-2 India remains unchanged. If current demand continues, there is a possibility for retrogression in September. As in prior months, all family-based and employment-based adjustment of status applicants must use the "Final Action Dates" chart.… [link]
7/5/2017 - DOS Fraud Unit Contacting Employers and End-Clients
There have been reports that the Department of State's Fraud Prevention Unit has been contacting employers and others to request confirmation that a beneficiary will be providing services at the company. The method of contact has been the following email address: email@example.com. Emails from that address are legitimate and should be responded to.… [link]
6/26/2017 - Supreme Court to Consider Constitutionality of Trump Travel Ban
On June 26, 2017, the Supreme Court granted certiorari and consolidated two key cases in the travel and refugee ban litigation. In addition, the Court granted a partial stay of the injunctions that had been preventing implementation of Section 2(c), Section 6(a), and Section 6(b) of Executive Order 13780. In effect, certain parts of the travel ban are being enforced until the Supreme Court issues a final decision after fully considering the ban in its October term this year.… [link]
6/16/2017 - USCIS Ombudsman Holding Open Teleconference on H-1B Petition Processing
On June 20, 2017, from 2:00pm to 3:00pm Eastern Time, the USCIS Ombudsman will host a teleconference on H-1B petition processing to discuss pressing issues such as the FY 2018 H-1B cap lottery, petition processing times, the temporary suspension of premium processing, and the March 31, 2017 USCIS guidance memo on computer programmers. RSVP is required for attendance.
6/15/2017 - July Visa Bulletin Issued
DOS has released the Visa Bulletin for July 2017. Most categories remained relatively unchanged. The final action date for EB-3 China retrogressed from 10/1/2014 to 1/1/2012, and the EB-4 India category retrogressed from Current to 8/15/2015. As in prior months, all family-based and employment-based adjustment of status applicants must use the "Final Action Dates" chart.… [link]
6/07/2017 - DOL Proclaims Committment to Combating H-1B Fraud
In response to President's Trump's orders requiring vigorous enforcement of immigration law, the DOL issued a statement of its commitment to detecting visa fraud and improving the efficiency of its programs. The statement also highlighted some recent referrals for criminal prosecution taken by the DOL's Office of the Inspector General in H-1B related actions, which have included instances of:
As always, users of the H-1B program must avoid engaging in any practices that might garner scrutiny from enforcement authorities, and should engage competent legal representation for guidance in any gray areas.… [link]
- Falsifying job titles, duties and job locations
- Misrepresenting a company's employer-employee relationship
- Fabricating contractual relationships between companies
- Misrepresenting Fabricating contractual relationships between companies
- Generating fake payrolls
5/31/2017 - USCIS Confirms Requirements for H-1B Master's Exemption
USCIS has issued a memorandum adopting Matter of A-T- Inc as an Adopted Decision. An Adopted Decision has binding force on all USCIS adjudication officers. The Matter of A-T- Inc case held that in order to qualify for an H-1B numerical cap exemption based upon a master’s or higher degree, the conferring institution must have qualified as a “United States institution of higher education” at the time the beneficiary’s degree was earned.… [link]
5/17/2017 - June Visa Bulletin Issued
DOS has released the Visa Bulletin for June 2017. The Final Action Dates for both EB-1 China and EB-1 India retrogressed to January 1, 2012. As in May 2017, all family-based and employment-based adjustment of status applicants must use the "Final Action Dates" chart.… [link]
5/5/2017 - USCIS Completes H-1B Lottery for FY 2018
USCIS has announced that it has completed data entry of all fiscal year 2018 H-1B cap-subject petitions selected under the lottery. In the next few weeks, USCIS will be returning all H-1B cap-subject petitions that were not selected.… [link]
4/19/2017 - President Trump Issues "Buy American and Hire American" Order
President Trump has issued another immigration-related order, entitled "Buy American and Hire American." The first part of the order directs the federal government to give preference to American companies for federal assistance programs and federal contracting. The second part of the order directs immigration agencies to issue new guidance and rules to protect the interests of United States workers. The order also requests that the agencies help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries. This last provision is of questionable legality as it would require an act of Congress to fully implement.… [link]
4/5/2017 - DOJ and DOL Advise H-1B Petitioners of Existing Laws Prohibiting Discriminatory Practices Against U.S. Workers
The Department of Justice issued a warning to H-1B petitioners that they must not discriminate against U.S. workers in hiring, firing or recruiting. The Department of Labor issued a similar directive, reinforcing its commitment to protecting U.S. workers from unfair labor practices by companies sponsoring H-1B workers. Neither statement provides any concrete details on changes in policy or focal points of enforcement.… [link]
4/4/2017 - USCIS Announces Measures to Detect H-1B Visa Fraud and Abuse
For the last few years, USCIS has been conducting largely random site visits to verify claims made on certain H-1B filings. These visits are conducted through the USCIS's Fraud Detection and National Security Directorate (FDNS). USCIS now plans to expand its site visits to focus more heavily on cases involving H-1B dependent employers, third party worksites, and new H-1B petitioners.… [link]
4/3/2017 - USCIS Revokes December 22, 2000 Terry Way Memo on Computer Programmers
USCIS issued a memo directed at the Nebraska Service Center, which only recently resumed processing H-1B petitions after many years, to clarify that the December 22, 2000 Terry Way memo is obsolete. The Way memo, now rescinded, seemed to suggest that Computer Programmer positions qualify as H-1B "specialty occupations" by default. The new memo encapsulates long-standing policy at the VSC and CSC that an H-1B petitioner must show that an offered Computer Programmer position requires a relevant Bachelor's degree or higher. The memo does not substantively change H-1B law, but may lead to higher RFE (Request for Evidence) rates for filings by Information Technology companies.… [link]
3/16/2017 - President Trump's Latest "Muslim Ban" Executive Order Blocked by Federal Court
A federal district court in Hawaii has issued an order blocking certain parts of President Trump's latest "Muslim ban" executive order (EO 13780), which was issued on March 6, 2017 after earlier versions had been rebuffed by other courts. The district court in Hawaii has blocked the latest order's 90-day travel ban on foreign nationals from certain Muslim-majority countries as well as the 120-day ban on the U.S. refugee program, effectively invalidating those provisions.… [link]
3/13/2017 - President Trump Issues Executive Order Implementing Heightened Immigration Screening
Following up on his campaign promises to implement "extreme vetting" of visa applicants, President Trump has issued an executive order directing DHS, DOS and other agencies to enhance screening of visa applicants to prevent the entry of foreign nationals who have terrorism connections. The order also suggests that the agencies should strictly enforce all inadmissibility and deportability grounds. The order does not change substantive immigration law. Rather, it may result in the stricter application of current law relating to visa refusals and denials at ports of entry.… [link]
3/4/2017 - USCIS Temporarily Suspends Premium Processing Service for H-1B Filings
Because of a heavy backlog in the processing of H-1B cases, starting on April 3, 2017 USCIS will stop accepting premium processing requests for H-1B cases. That means that all FY2018 H-1B cap cases must be filed under regular processing. USCIS indicates that the suspension will last up to 6 months.… [link]
2/3/2017 - USCIS Clarifies Automatic EAD Extension Rule
As per the final AC21 regulation that became effective on January 17, 2017, the prior regulation requiring EAD adjudication within 90 days has been repealed. Instead, USCIS will now provide an automatic extension of an expired EAD for up to 180 days while a timely-filed EAD extension (in the certain categories) is pending. USCIS has issued a Fact Sheet further explaining this benefit..… [link]
1/28/2017 - President Trump Issues Immigration-Related Executive Orders
Since taking office, President Trump has issued a flurry of immigration-related executive orders. Several of these orders are largely symbolic or of questionable validity given that they require the action of Congress for actual implementation. Others are likely to face vigorous challenge in federal court. For instance, the most recent executive order, from January 27, 2017, has been met with universal condemnation from a variety of political, cultural and social groups. After a lawsuit brought by the ACLU, a federal judge has temporarily invalidated the January 27, 2017 order. The judge's decision also notes that the order is likely to be invalidated once a full decision is made. We will continue to provide updates on this issue. Trumps's immigration-related orders seek to:
As noted above, at least some of these orders are of questionable legal validity at present. Also Trump's plan for "extreme vetting" of aliens would not affect immigration beneficiaries from non-Muslim majority countries like India or China.… [link]
- Expand the list of undocumented immigrants who will be subjected to prioritized deportation
- Increase resources for Immigrations and Customs Enforcement (ICE)
- Reduce federal funding for so-called "sanctuary jurisdictions" that refuse to use state law enforcement resources for federal immigration purposes
- Reinstate the Secure Communities Program, which required local law enforcement to share with DHS the identities of people held in local jails. The Program also required local law enforcement to continue to hold undocumented jailees beyond their normal release date if ICE sought their custody
- Direct DHS to start expanding the physical wall on the Southern Border
- Expand "expedited removal" to the maximum extent of the law. The removal procedure had previously applied to border regions
(within 100 miles of any U.S. border) and recent unlawful entrants (within 14 days)
- Suspend the entire refugee program for 120 days
- Require federal immigration agencies to expand efforts to root out fraud and evaluate each applicant's “likelihood of
becoming a positively contributing member of society” and “ability to make contributions to the national
- Indefinitely ban Syrian refugees
- Impose a 90 day ban on travel by all non-US Citizens holding passports from Iraq, Iran, Libya, Somalia, Sudan, Syria, and
Yemen, with additional countries to be possibly added later
- Require in-person interviews for all nonimmigrants, thereby suspending the Visa Interview Waiver Program (VIWP)
1/22/2017 - New Form I-9 Version Goes Into Effect
Effective today, employers must use only the new version of Form I-9, dated 11/14/2016. The new form allows for the including of additional information, such as additional names used by the new hire.… [link]
1/4/2017 - AAO Establishes Standard for Medical Licensing Exemption Under H-1B Regulations
The AAO has established a precedent opinion on the applicable standard for “physicians of national or international renown” under 8 C.F.R. § 214.2(h)(4)(viii)(C). That regulation relates to an exemption from the medical licensing requirement for medical and osteopathics doctors seeking H-1B status.… [link]
12/22/2016 - USCIS Repeals NSEERS Religious Profiling Program
In reaction to the 9/11 attacks, the Department of Homeland Security instituted a highly onerous reporting program called the National Security Entry-Exit Registration System (NSEERS). The program subjected adult male nonimmigrants from most Muslim-majority countries to mandatory, routine reporting before DHS officials. DHS put the program on hold in 2011 after essentially admitting that the program was ineffective and unduly burdensome. Given President-Elect Trump's recent rhetoric against Muslim immigrants, many feared that the Trump administration would rejuvenate the dormant NSEERS program. In a suprising move, the Obama administration has repealed the NSEERS regulations in the last days of his presidency. This move will make it slightly more difficult for a Trump administration to conduct selective profiling of nonimmigrants from Muslim-majority countries in the next term.
12/15/2016 - Department of State Releases Visa Bulletin for January 2017
DOS has released the Visa Bulletin for January 2017. Notably, the Bulletin shows progression in the cutoff date for EB-2 (India) by about ten weeks to April 15, 2008. EB-3 (India) remains static at March 15, 2005. The EB-1 category continues to be current for all countries. USCIS has confirmed that Form I-485 applicants in the family-based categories can use the "Dates for Filing" category listed in the Visa Bulletin, whereas employment-based applicants must use the "Final Action Dates" chart.
11/18/2016 - USCIS Finalizes AC21 Regulation
USCIS has released a Final Rule geared towards helping employment-based immigrant visa and H-1B beneficiaries. The Rule takes effect on January 17, 2017. It consolidates many existing agency interpretations and policies into regulations that cover the following areas:
In addition, the Final Rule creates a number of new benefits for certain employment-based immigration beneficiaries:
- Allowing beneficiaries to use the earliest priority date among multiple approved I-140s
- Permitting those with pending professional licenses to apply for H-1B visas
- Defining how H-1B status can be extended post-6th year under AC21
- Describing how I-485 applicants can change their sponsoring employers under AC21
- Defining H-1B portability requirements in "H-1B transfer" situations
- Defining rules for H-1B cap-exemption, recapture and remainder procedures
The new regulations contain a number of additional details not captured in this summary, and interested parties can benefit from a close reading of the rules. [link]
- Permitting E, H, L and O nonimmigrants who have an approved I-140 and who are facing "compelling circumstances" to apply for a renewable 1 year EAD, the usage of which would render them in "authorized stay" but out of status.
- Creating 10 day grace periods before and after authorized validity periods of stay for E, L and TN nonimmigrants
- Creating a 60 day unemployment grace period for E, H, L, O and TN nonimmigrants
- Confirming that an I-140 remains valid for AC21 H-1B purposes (but not for green card purposes) after it has been approved for 180 days, despite withdrawal by the employer
11/18/2016 - Election of Donald Trump as U.S. President
Despite losing the popular vote, Donald Trump has won the U.S. presidency by gaining the majority of electoral ballot voters after nationwide elections on November 8, 2016. Trump's anti-immigration campaign rhetoric has raised widespread concerns about the fate of the American immigration system. While Trump initially promised to deport the 11 million undocumented people living in the country, post-election he has backed down from that claim to say that only criminal aliens will be deported. The number of deportations is already at a historic high under President Obama, and that trend will continue. President Obama's immigration-related executive orders (including the Deferred Action for Childhood Arrivals system) have already been stymied in court, and are now doomed under the Trump presidency. Trump has also hinted at the revival of the ineffective and now-latent NSEERS system, which from 2002 to 2011 required male nonimmigrants from certain Muslim-dominated countries to register with the Department of Homeland Security.
The President-elect has been equivocal on employment-based immigration issues. In some speeches, he has lambasted the H-1B program, even though his own companies have used the program extensively. Trump's selection of notorious anti-immigrant legislator Jeff Sessions for the post of U.S. Attorney General suggests that the federal government will increase scrutiny on foreign workers and their employers in the coming years. That said, only Congress can make sweeping changes to the country's immigration laws. Many members of Congress remain in favor of immigration, and so the whole-scale dismantling of existing visas and programs is very unlikely.
11/15/2016 - USCIS to Apply "Dates for Filing Visa Applications" Cutoffs for Most Categories in December 2016
In December 2016 USCIS will allow Form I-485 adjustment applicants to utilize the "Dates for Filing Visa Applications" chart if the basis for the application is a Family Based immigrant petition in the first through fourth categories, or an Employment Based immigrant petition in the first through fourth categories. Priority date cutoffs remain largely unchanged from November 2016.
10/4/2016 - US Supreme Court Rejects Request for Rehearing in Obama Executive Action Case
The U.S. Supreme Court has rejected the federal government's request to rehear United States v. Texas. In June 2016, the Court effectively blocked Barack Obama’s immigration executive actions from taking effect. While the executive actions would not have changed the law (legislation), they attempted to create numerous administrative benefits to certain undocumented people. The case is now headed to the Fifth Circuit, where the federal government is likely to lose given that court's conservative history. [link]
7/28/2016 - I-601A Provisional Waiver Program Expanded
USCIS has issued a final rule that, effective August 29, 2016, will permit the filing of I-601A unlawful presence waivers by all applicants who can establish extreme hardship to a USC or LPR. In 2013, DHS started allowing certain immigrant visa applicants in the U.S. with six months or more of unlawful presence to apply for waivers of inadmissibility prior to leaving the US. Previously, waivers had to be filed at consulates abroad. The 2013 change applied only to the immediate relatives of U.S. citizens. Now, all IV applicants (regardless of immigration visa category) will be eligible to apply for a provisional waiver.
4/14/2016 - USCIS Finalizes New 24 Month STEM OPT Rule
In 2015 an anti-immigration group posing as an Information Technology union successfully challenged the validity of the Department of Homeland Security's STEM OPT program. The District Court for the District of Columbia found various procedural deficiencies in the way that DHS had published the existing 17 month STEM OPT program. Instead of vacating the program outright, the court permitted DHS to revise its STEM rules to comply with the requirements of the Administrative Procedure Act (APA). DHS has now finalized the new STEM OPT rules after considering public comments from thousands of commenters. The new STEM OPT rule goes into effect on Tuesday, May 10, 2016. The new rule expands STEM OPT eligibility to 24 months, in place of the earlier 17 month program. Notably, an employer seeking to hire a STEM student must now file a very detailed training plan on Form I-983 with the student's DSO, in addition to being an E-Verify company. STEM OPT trainees must be paid on par with similarly situated US workers, and must work at least 20 hours per week. DHS will conduct periodic site visits at worksites to ensure compliance. STEM OPT students, employers and DSOs also have various reporting responsibilities under the new rule. For more information on the new requirements for STEM OPT extensions visit this page.
11/3/2015 - USCIS Issues Proposed Rule for Revised OPT STEM Program
Earlier this year, a federal district court invalidated the USCIS's STEM OPT program, giving the agency until February 12, 2016 to adopt revised regulations. As expected, USCIS has proposed revised regulations for the OPT STEM program. The proposal contains a number of key differences from the prior version of OPT STEM. First, the proposed regulations expand STEM OPT to 24 months per educational level, and attempt to clarify which degrees qualify as STEM-eligible. Significantly, the regulations also impose a number of regulatory burdens on prospective STEM employers. As before, E-Verify registration is required and the employment opportunity must be directly related to the STEM degree. In addition, an employer would now be required to implement a formal Mentoring and Training Plan. This training would practically be similar to on-the-job training provided at various training institutes. The employer would also be required to attest that the terms and conditions of the STEM practical training opportunity (including duties, hours, and compensation) are comparable to similar opportunities available to U.S. workers. This could establish a de facto requirement that STEM employees be paid the Level 1 Wage under the DOL's OES Wage Data system. Concerned parties have until November 18, 2015 to respond to USCIS about the proposal.… [link]
10/15/2015 - USCIS Provides First Update on October 2015 Visa Bulletin Fiasco
Without providing any info on the reasoning behind its reversal on the October 2015, the USCIS has issued an update on how it intends to proceed under the new 2-part Visa Bulletin.
Approximately one week after DOS releases the Visa Bulletin each month, USCIS will post an announcement to inform adjustment of status applicants whether they can rely on the "filing dates" chart or the "final action dates" chart in the Visa Bulletin to determine when they can file their applications. Thus, in some months the "final action date" will determine which I-485 applications can be filed, and in other months the ""filing date" will apply for that purpose.
9/25/2015 - New October 2015 Visa Bulletin Reflects Earlier Cutoff Dates
With the end of the month just a few days away, the Department of State has issued a revised visa bulletin for October 2015. Notable changes to the revision are new cutoff dates for EB-2 India (July 1, 2009), EB-2 China (January 1, 2013), and EB-3 Philippines (January 1, 2010). More information on the revision can be found here.
7/22/2015 - USCIS Provides Final Guidance on When An Amended Petition is Required Given Worksite Changes
As we reported earlier, under the AAO's recent Matter of Simeio Solutions decision, many worksite changes will require the filing of an amended H-1B petition prior to the change. USCIS has now issued final guidance that creates a phased-in compliance period for H-1B amendment filings. If an H-1B employee shifted to a non-commutable location not covered by a prior H-1B petition before April 9, 2015 (the date of the Simeio decision), then an amended petition is not required. If the shift occurred between April 9, 2015 and August 19, 2015, petitioners have until January 15, 2016 to file an amended petition. Any shift that occurs after August 19, 2015 must be preceded by an H-1B amendment. If an amended petition is not filed for affected employees within these guidelines, the company and its employees will be out of compliance with USCIS policy and would thus be subject to adverse action.
5/27/2015 - Federal Appeals Court Permits Injunction Against Obama Immigration Measures
The Fifth Circuit Court of Appeals has decided not to lift an earlier stay implemented by a federal district court in Texas. The stay has put the much-touted Obama immigration plan on hold. A final decision on the lawsuit, which was brought by a total of 26 states, remains pending at the Fifth Circuit. The lawsuit claims that President Obama's proposed changes to immigration policy are illegal since they are essentially legislative changes that were not vetted by Congress. The case is likely to go before the Supreme Court for resolution. The rule allowing H-4 EADs is unaffected by the stay since it was passed as a regulation under the usual notice-and-comment rulemaking procedure.
4/9/2015 - AAO Decides that Amended H-1B Petitions Are Required for Certain Worksite Changes
Resolving an issue that had been lingering for a few years, the AAO has decided in Matter of Simeio Solutions, a precedent decision, that a change in the place of employment of an H-1B worker will require an amended H-1B petition if the new worksite is outside the commutable distance of the old worksite listed on the prior Labor Condition Application (LCA) filed for the worker. A new worksite within the same geographic area as that identified on a prior LCA will not require an H-1B amendment.… [link]
2/24/2015 - USCIS Expands Work Authorization to Select H-4 Spouses
Pursuant to a proposed rule issued last year, the USCIS will begin accepting applications for H-4 work authorization starting on May 26, 2015. To qualify, the H-1B spouse must have an approved I-140 or must have extended H-1B status beyond the normal 6 year limitation.… [link]
8/2/2011 - USCIS Revises FAQ's on Establishing the "Employee-Employer Relationship" in H-1B Petitions
Click here for an automatic form that allows you to contact your district's Congressional representatives about the need for Comprehensive Immigration Reform.
Shortly after the issuance of the Neufeld Memo in January 2010, the USCIS issued a set of FAQ's addressing how an H-1B Petitioner could establish that it had the requisite employer-employee relationship with the H-1B Beneficiary. These FAQ's have been revised with additional information. As before, the emphasis is on documentary evidence establishing the employer's right to control the employee in the employee's performance of duties.… [link]
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Akshat Tewary has recently been cited in various publications for his advocacy work on corporate banking reform.
93 percent of approved H-4 EADs have been issued to Indian citizens. And 93 percent of approved H-4 EADs have been issued to women.
USCIS processing data reveals that the agency has significantly increased scrutiny of H-1B petitions. In November 2017, the approval rate for H-1B petitions was 82.4%, which is a significant drop from the 92.3% approval rate for the same time last year. The RFE rate in November 2017 was 46.6%, which is more than 4 times the recent low of 11.8% in May 2016.
Join us on Monday, April 24, 2017 at 8:00pm EST for a free, 1-hour webinar entitled "Is the H-1B Program in Jeopardy?" We will discuss the various currently-pending legislative bills, executive orders and judicial cases impacting the H-1B program. Click here at that time to join the conference.
A recent AAO decision, Matter of Simeio Solutions LLC, has significantly changed immigration law as it relates to H-1B employees who shift to new worksites. Read our analysis of the case, which answers the question: When Are Amended H-1B Petitions Required for Worksite Changes?.
The House of Representatives is considering immigration reform measures. Click here for our summary of the Senate's version of immigration reform, which was passed in June 2013. The bill is particularly significant for IT companies that rely heavily on foreign workers.
Companies that sponsor H-1B petitions can proactively update their information in VIBE, which is the commercial database that USCIS uses to check company status. This link allows customers to update their records without being subject to commercial marketing by Dun and Bradstreet.
In a troubling development, the USCIS California Service Center has informally publicized that an amended H-1B petition should be filed if an LCA is filed anytime after approval of a prior, un-expired petition. USCIS is expected to formalize a position on this issue soon.
Applicants for a change from F-1 to H-1B status under the "Cap Gap" regulations should remember that cap-gap work authorization only applies until September 30, 2011. If a Cap Gap H-1B petition remains pending on October 1, 2011, the H-1B beneficiary is eligible to stay in the US while that change of status petition is pending, but effective that date he/she cannot work.
USCIS has provided a Q+A covering the F-1 to H-1B Cap Gap regulations.
Our sports immigration blog covers the issue of major league sports lockouts, and what effect they have on the immigration status of professional athletes.
Based on recent USCIS processing trends, we have issued an article addressing the implications of the January 2010 Neufeld Memorandum for computer consulting companies filing H-1B petitions.
In light of recent publicity regarding refusals of traveling H-1B workers at the Newark port-of-entry, we have prepared an information bulletin entitled "Is Traveling a Violation? Tips for H-1B Workers Going Abroad." This article covers implications of the Neufeld Memo, 221(g) denials at the Consulate, and admission refusals by CBP officers.
We have issued an information summary entitled "H-1B Cap Filings for Current F-1 Students," which covers various issues facing F-1 students relating to Optional Practical Training (OPT) and H-1B Cap filings. The article provides a summary of both employment categories and discusses various issues such as employer obligations under OPT and H-1B and the Cap-Gap provisions.
As we reported earlier, the USCIS's Office of Fraud Detection and National Security (FDNS) has begun to increase the number of investigations and random audits being conducted on H-1B employers. USCIS-Vermont Service Center has confirmed that it expects to conduct 20,000 site visits to H-1B employers in the near future. These audits are in addition to the normal complaint-driven investigations that have always been conducted by state-level Department of Labor agencies. Moreover, there have been troubling reports that in some cases, FDNS is "outsourcing" H-1B auditing functions to private detectives with no formal training or allegiance to the USCIS. It is highly questionable whether lay private detectives and investigators would know of the complex regulations, nuances and exceptions that relate to employers' obligations under the H-1B program. H-1B employers are encouraged to pay due attention to their compliance requirements in the near term, including proper maintenance of I-9 records and LCA-related public access file/notice postings.
Our firm conducted a web teleconference on March 6, 2009 on the topic of "LCA Compliance Issues for Employers of H-1B Workers."