Some information on recent developments in the practice of business immigration law appears below.
10/7/2020 - DOL Changes Computation of Prevailing Wage in OES Wage Survey
The Department of Labor maintains the OES Wage Survey, which is the primary source of wage data for computation of H-1B and PERM prevailing wages. In an interim final rule effective October 8, 2020, DOL is revising its methodology to effectively increase the wages listed at each of the 4 wage levels (I-IV) in the OES system. For example, what was previously a Level IV wage under the prior system will now correspond roughly to a Level II wage. The rule is expected to face court challenge because the DOL published it as an Interim Final Rule, without going through the normal notice and comment procedure that applies to agency rulemaking. Under the Administrative Procedure Act, a federal agency can only a publish a rule without giving the public an opportunity to comment on a proposed version if "good cause" exists. "Good cause" can exist in case of emergency or Congressional acquiescence. Many observers believe that the DOL rule does not meet this standard, and instead has been rushed through as an Interim Final Rule as a political move in anticipation of the November presidential election.… [link]
10/7/2020 - USCIS Issues New Specialty Occupation Regulation
USCIS has issued an Interim Final Rule revising the regulatory standards for H-1B petitions effective December 7, 2020. Generally, the new rule encapsulates de facto USCIS policy as expressed in RFEs over the last few years. The regulation also contains some important changes to existing policy. The rule revises the definition of “specialty occupation” to require the beneficiary's degree to very closely relate to the offered position's duties. Speculative employment is not permitted, and petitioners placing H-1B employees at third party worksites must document the availability of work at the site. USCIS will issue approvals for only up to 1 year where there is a third-party worksite (given that purchase orders are rarely for a duration in excess of 1 year). All H-1B petitioners must also demonstrate that they will serve as the legal "employer" of the H-1B worker. The new regulation deviates from the January 2010 Neufeld Memo's emphasis on "employer control" and instead adopts a totality of circumstances test to gauge whether an H-1B petitioner is the "employer."
The regulation also suggests that failed site visits at claimed worksites could lead to the revocation of all H-1B petitions listing such worksites. As we predicted earlier, this new regulation has been promulgated to undo the significant concessions granted under the ITServe settlement from earlier this year, which was a cause of embarrassment for the agency. As with the DOL Interim Final Rule, this USCIS Interim Final Rule is expected to face legal challenge.
9/29/2020 - Proposed Changes to USCIS Fees and Forms Put on Hold
USCIS previously issued a final rule that would have imposed new fees and forms effective October 2. Several immigration advocates challenged the legality of the rule. Today, in Immigrant Legal Resource Center v. Wolf, a federal district court in California issued a nationwide preliminary injunction on the USCIS rule. The nationwide scope of the injunction is especially noteworthy given that the U.S. Supreme Court in DHS v. New York recently took issue with district courts issuing broad, nationwide injunctions benefiting non-parties. That Supreme Court case is what eventually led USCIS to reimpose the public charge rule (discussed below). Today's district court injunction means that the proposed fee increases and form changes will not take effect from October 2. All fees and forms currently on the USCIS website will continue to be valid. While the injunction on USCIS is only temporary, it should be noted that a final decision is unlikely for several months. Also, any such temporary injunction must show "likelihood of success on the merits" so chances are high that the immigration advocates who challenged the rule will eventually win their case. The district court observed a number of procedural flaws in USCIS's fee rule, including the fact that Trump's appointee to head DHS, Chad Wolf, has been appointed illegally.… [link]
9/26/2020 - October Visa Bulletin Issued
Because of the COVID-19 pandemic, a large number of visa numbers went unused at the consulates in the last few months. Those numbers are being carried forward to the start of the new fiscal year in October 2020. In order to ensure that all of these numbers are used, DOS has issued a visa bulletin with very significant progression in the "Dates for Filing" category, and more modest progression of the "Final Action Dates" category. USCIS has confirmed that all employment-based adjustment of status applicants must use the "Dates for Filing" chart. Family-based adjustment of status applicants in all categories except F2A must use the "Dates for Filing" chart. The priority date cutoff for purposes of Form I-485 filings under EB-3 India is January 1, 2015, while that of EB-2 India is May 15, 2011. Because of the unusual reversal where EB-3 is more favorable than EB-2, a large number of EB-2 eligible individuals are seeking to downgrade their I-140s to EB-3, and thereby file for adjustment of status many years before they would otherwise have been able to. Our firm is currently accepting both I-485 and I-140/I-485 downgrade cases for processing. Given the enormous demand for filings, it is questionable whether priority dates will continue to be as favorable in November as they are in October, despite the fact that the October Visa Bulletin contains a forecast promising "rapid forward movement" in the coming months. It is quitely likely that the DOS did not anticipate the rush for filings and the number of downgrades being filed.… [link]
9/25/2020 - USCIS Proposes Ending Duration of Status (D/S) Status Expiration
Currently, nonimmigrants on F, J and I visa status are issued I-94s listing "Duration of Status" or D/S as their status expiration date. This means that they will not begin to accrue unlawful presence until the day after there is a formal finding of a status violation by USCIS or an immigration judge. USCIS has issued a proposal that would now assign a fixed end-date for I-94s issued to F, J and I nonimmigrants. This means that people in these categories would have to file periodic extensions of status, pay biometrics fees, and attend biometrics interviews. Interested parties who oppose the change can file a comment at the following link.… [link]
9/22/2020 - USCIS Reimposes Public Charge Requirements
Based on pending litigation, the Second Circuit Court of Appeals had put the DHS's controversial public charge rule on hold. The court has now lifted its nationwide injunction. USCIS will not re-adjudicate cases that were initially filed without public charge information (due to the prior injunction) and then approved. However, all public charge requirements (such as filing Form I-944 with adjustment cases) have been reimposed. Further, USCIS may issue RFEs for pending cases that were filed without public charge information while the injunction was in effect.… [link]
9/5/2020 - Revised Specialty Occupation Regulation Expected Soon
USCIS is pushing forward with long-delayed plans to revise the fundamental regulatory standard for H-1B visas: "specialty occupation". The proposal will revise the definition of "specialty occupation" to increase focus on obtaining the best and the brightest foreign nationals via the H-1B program, and adopt a more restrictive definition of employment and employer-employee relationship. As many of you know, in a recent settlement with ITServe, USCIS agreed not to enforce employer-employee documentary requirements that were first laid out in the January 2010 Neufeld Memo. As we explained earlier this year, USCIS agreed to the provision mainly because it planned to re-impose a strict employer-employee definition in a future rulemaking. It is important to note that the IT Serve settlement will have no impact on this proposed regulation, once it is adopted. The proposal's renewed focus on "best and the brightest" H-1B workers means that preference will be given to high wage level workers. It should be noted that our firm previously challenged USCIS on this issue by highlighting that the H-1B statute never intended for the H-1B visa to be reserved for the "best and brightest" and in response, USCIS acknowledged that fact. How the agency now plans to get around that stark admission remains to be seen. We expect the proposed regulation to be enacted before the start of the next presidential administration cycle (in January 2021).… [link]
8/25/2020 - USCIS Cancels Furlough Plans
It appears that USCIS had mischaracterized its profitability in earlier statements warning of imminent furloughs. In response to pressure from Members of Congress, USCIS has now discovered that it has sufficient funds to continue operations through the end of fiscal year 2020 (September 30, 2020) with no furloughs. Case processing delays are still to be expected.… [link]
8/25/2020 - Interview Waiver Window Expanded to 2 Years
Due to pandemic-related disruption, DOS has expanded the window for Interview Waiver eligibility. Previously, only those applicants whose nonimmigrant visa expired within 12 months were eligible for an interview waiver when applying for visa re-stamping. DOS has temporarily extended the expiration period to 24 months. This policy is in effect until December 31, 2020. … [link]
8/24/2020 - September Visa Bulletin Issued
The Department of State has released the Visa Bulletin for September 2020. USCIS has confirmed that all employment-based adjustment of status applicants must use the "Final Action Dates" chart. Family-based adjustment of status applicants in all categories except F2A must use the "Dates for Filing" chart. The filing cutoff for EB-3 India remains at October 1, 2009, while that of EB-2 India remains at July 8, 2009.… [link]
8/19/2020 - I-765 Approval Notices are Proof of Employment Authorization in Some Cases
Due to the COVID-19 pandemic and bureaucratic inefficiency, USCIS has been delaying the production of EAD cards in cases where Form I-765 has already been approved. Form I-9 instructions currently state that an approval notice for Form I-765 cannot be the basis to start work. To alleviate the harms that the delayed card production has caused, USCIS has announced that employees may use Form I-765 approval notices dated between December 1, 2019 and August 20, 2020 as proof of work authorization for Form I-9 purposes.… [link]
8/18/2020 - OPT Students Must Update SEVIS With Employment Information
USCIS has issued a reminder that all OPT students must update their school's DSO with their current employment information. Failure to do so could be considered as grounds for falling out of status. SEVIS will count each day without employer information toward the total number of unemployment days allowed. … [link]
8/12/2020 - DOS Expands Exceptions to June 22, 2020 Trump Executive Order Affecting H/L/J Nonimmigrants
DOS has announced additional exceptions to the Trump Executive Order restricting entry of H/L/non-research J Nonimmigrants in 2020. H-1B workers seeking visas can avail of stamping if their employment involves alleviating the effects of COVID-19, is at the request of a U.S. government agency, or if Part II, Question 2 of their approved Form I-129 listed “previously approved employment without change with the same employer.” An additional exemption applies to technical workers who meet 2 out of 5 listed factors. Those factors include the inability to perform remote work, potential hardship to the U.S. employer, unusual expertise held by the employee, a wage rate over 15% of the prevailing wage, or employment meeting a critical infrastructure need. L-1 workers employed by an employer meeting a critical infrastructure need can also apply for an exemption to allow for stamping.… [link]
8/5/2020 - More Success for Immigrant Advocates in Federal Court
The government has declined to appeal a prior ruling by a district court that permanently enjoined USCIS from implementing its August 8, 2018 USCIS policy memo on the accrual of unlawful presence for F, J, and M nonimmigrants. That memo had suggested that F-1 students could be found to be out of status, and accruing unlawful presence, retroactively. However, that memo has been invalidated. As before, students can now be found to be out of status only as of the date that such a decision is made (not retroactively). In another case, DHS was successfully sued for delays in the printing of EAD cards.
7/31/2020 - DHS Public Charge Rule Put on Hold
In August 2019, DHS issued a revised regulation concerning the public charge basis for inadmissibility, making it easier for immigration authorities to deny the admission of foreigners who receive or might be at risk of receiving public assistance or welfare. Immigrant advocates have succeeded in having a federal court in New York place a temporary injunction against DHS from enforcing this new public charge rule. The ruling cites many flaws in the new public charge rule, including its discriminatory intent. A final decision on the merits of the case is forthcoming. In the meantime, USCIS will apply the prior public charge guidance (from 1999).
7/27/2020 - Delays at USCIS Expected Due to Planned Furloughs
USCIS has begun issuing furlough notices to its employees and anticipates that the agency will need to furlough approximately 13,400 employees starting August 31, 2020, if the agency does not receive funding from Congress. Employees may remain furloughed until October 1, 2020. USCIS has requested a $1.2 billion bailout from Congress to keep the agency afloat. Advocates for reform are urging members of Congress to hold USCIS accountable for this budget shortfall and ensure that any funding provided by Congress is conditioned on key changes in transparency, fiscal responsibility, and efficiency.
7/22/2020 - ICE Withdraws Guidance on In-Person Study for F-1 Students, with Exceptions
Under a long-standing regulation (8 CFR 214.2(f)(6)(i)(G)), F-1 students cannot take more than 1 online class. On March 9, 2020, ICE relaxed that requirement, allowing all currently enrolled students to continue F-1 study fully online. On July 6, 2020, it issued new guidance that would have required all students to take at most one class online. However, after Harvard and MIT sued ICE, the agency withdrew the July 6, 2020 guidance as part of a settlement. Therefore, the March 9, 2020 guidance continues to apply. Because the March 9, 2020 guidance only applied to continuing students, this means that
newly admitted F-1 students cannot enter the US in the fall if their university program does not have at least hybrid (online/offline) instruction.
7/21/2020 - August Visa Bulletin Issued
The Department of State has released the Visa Bulletin for August 2020. USCIS has confirmed that all employment-based adjustment of status applicants must use the "Final Action Dates" chart. Family-based adjustment of status applicants in all categories except F2A must use the "Dates for Filing" chart. The filing cutoff for EB-3 India has progressed to October 1, 2009, while that of EB-2 India remains at July 8, 2009.… [link]
7/16/2020 - DOS Lists Exceptions to June 22, 2020 Trump Executive Order Affecting H/L/J Nonimmigrants
DOS has announced a few exceptions to the Trump Executive Order restricting entry of H/L/non-research J Nonimmigrants in 2020. In line with the text of the order itself, the announcement mentions that exceptions exist for COVID-19-related healthcare workers and those working on projects essential to a U.S. government agency. Significantly, the announcement states that national interest exceptions are available for H-4, L-2, and J-2 visa applicants whose spouse or parent is currently in the United States or has a valid visa. The announcement also seems to imply that those currently in the United States (with or without a valid visa stamp) on June 24, 2020 might be eligible for H/L/J stamping, although final confirmation of that interpretation is pending.
7/10/2020 - ICE Requiring F-1 Students to Attend Classes Onsite in Fall 2020
ICE has announced that for the Fall semester of 2020, all F-1 students will be required to attend at least some classes in-person. The three options for continued study will be: remote learning from outside the United
States, in-person classes or a hybrid model that combined both in-person and online classes. Harvard and MIT have already sued to block the measure, and a hearing is scheduled for Tuesday to determine if the judge will grant the universities' emergency order to block the Trump administration from enforcing this restrictive rule change.… [link]
6/23/2020 - Trump Issues Executive Order Restricting Entry of H/L/J Nonimmigrants in 2020
President Trump issued a broad executive order prohibiting certain individuals from entering the country's border using H-1B, H-2B, H-4, L-1, L-2 and most J visas for the rest of the year. Significant exceptions apply. Naturally, the order has caused widespread concern in immigrant communities (its intended effect). The proclamation prohibits anyone from entering the country this year using an H/L/J visa IF that person:
Many categories of individuals do not fit within the above definition, including everyone in the United States as of June 24, 2020, any LPR outside the United States, spouses and children of US citizens, anyone with a currently valid H/L/J visa stamp, asylees, refugees, and anyone with an advance parole document. Notably, the executive order creates exemptions for anyone "whose entry would be in the national interest" or those who provide services that are "essential to the United States food supply chain". The Department of State's consulates would specify the procedures for applying for either of these two exemptions. The order also encourages USCIS and DOL to review current rules and regulations to better protect US workers. These agencies are likely to tighen enforcement and adjudication standards in the near future to comply with the directive. For instance, petitioners can expect more frequent RFEs challenging H-1B petitions featuring Level 1 (and possibly Level 2) wages.
- was outside the United States on June 24, 2020;
- did not have a nonimmigrant visa that was valid on June 24, 2020; and
- does not have a temporary travel document (such as an advance parole) valid on June 24, 2020 or thereafter.
The executive order also extends the prior immigrant visa ban, issued under Proclamation 10014, through December 31, 2020. That earlier proclamation suspended immigrant visa (green card) processing at US Consulates for individuals who:
Numerous categories of immigrant visa applicants are exempted from the restriction, including: health care workers and other essential workers, EB-5 applicants, and spouses/children of US citizens. All current green card holders are unaffected by either proclamation. Click here for our webinar discussing the ramifications of these orders.
- were outside the United States on April 23, 2020
- did not have an approved immigrant visa on April 23, 2020; and
- do not have a temporary travel document (such as an advance parole) at the time of travel.
6/22/2020 - USCIS Issues Memo Required Under ITServe Settlement
Earlier this year, DHS and ITServe entered into a settlement agreement after a string of legal challenges by ITServe plaintiffs against USCIS's H-1B policies. USCIS has now issued a memo implementing the changes that it was required to make under the settlement. First, the memo repeals two earlier memos (January 8, 2020 Neufeld Memo and February 22, 2018 Third-Part Worksites Memo), which had been used by USCIS to apply a very high standard for the adjudication of H-1B petitions by IT consulting companies. Under the latest memo, H-1B petitioners must still meet the regulatory requirement of showing that an employer-employee relationship will exist with the H-1B worker, but it appears that that requirement can be met merely by providing an employment agreement. The memo further states that an H-1B petitioner is not required by existing regulation to submit contracts between the petitioner and third parties or identify and document the beneficiary's specific day-to-day assignments. USCIS will also not apply the itinerary requirement at 8 CFR 214.2(h)(2)(i) in H-1B adjudications for now, until it issues new regulations on this requirement. Despite these changes, H-1B petitioners must still attest under penalty of perjury that a "bona fide job offer exists at the time of filing". This is USCIS's way of saying that, as before, a consulting company must confirm a project for a beneficiary prior to filing an H-1B petition. If a filing is done even though no project is confirmed, USCIS might see the filing as frivolous. In effect, the latest memo significantly lowers the bar for how much documentation USCIS will require. Still, the memo does not rescind the requirement that H-1B petitioners have specific work available for beneficiaries. In light of this ongoing requirement, we are still recommending that clients provide all available contracts, vendor letters and client letters in cases involved third party worksites.… [link]
6/17/2020 - July Visa Bulletin Issued
The Department of State has released the Visa Bulletin for July 2020. USCIS has confirmed that all employment-based adjustment of status applicants must use the "Final Action Dates" chart. Family-based adjustment of status applicants in all categories except F2A must use the "Dates for Filing" chart. The filing cutoff for EB-3 India is at June 1, 2009, while that of EB-2 India is July 8, 2009.… [link]
5/29/2020 - USCIS Resuming Premium Processing in Phases
USCIS will be restarting its premium processing service for I-129 and I-140 petitions in phases, according to the type of case. Generally, pending petitions will be premium-eligible sooner and new filings and cap cases will be eligible later. Click the following links for the details:… [link]
5/26/2020 - Trump Issues Executive Order Limiting Entry of Certain Chinese F-1 Students
President Trump has added a new hurdle for certain Chinese F-1 students, on top of ongoing travel restrictions that apply because of the COVID-19 pandemic. Trump issued an executive order that temporarily suspends the entry of Chinese F-1 and J-1 students if they have received funding from, worked for, or otherwise have had a connection with the Chinese goverment (or any Chinese agency that …that implements or supports the PRC…s …military-civil fusion strategy.…).
Undergraduate students are exempted.
5/26/2020 - ITServe Settlement Leads to Repeal of Memo Covering Third-Party Worksites
USCIS has entered into a settlement agreement with ITServe, after a number of recent legal victories by ITServe plaintiffs. Many of these plaintiffs have successfully challenged USCIS denials of H-1B petitions based on the 2018 USCIS Memo entitled "Contracts and Itineraries Requirements for H-1B Petitions Involving Third-Party Worksites" (2018 Memo). USCIS will repeal the 2018 Memo by August 18, 2020. After USCIS repeals the memo, the agency should not deny petitions for failing to meeting the itinerary requirement established at 8 C.F.R. … 214.2(h)(2)(i)(B), until USCIS issues a clarifying regulation on the matter. Our analysis of the settlement can be found here.
5/21/2020 - June Visa Bulletin Issued
The Department of State has released the Visa Bulletin for June 2020. USCIS has confirmed that all employment-based adjustment of status applicants must use the "Final Action Dates" chart. Family-based adjustment of status applicants in all categories except F2A must use the "Dates for Filing" chart. The filing cutoff for EB-3 India is at April 1, 2009, while that of EB-2 India is June 12, 2009.… [link]
4/24/2020 - May Visa Bulletin Issued
The Department of State has released the Visa Bulletin for May 2020. USCIS has confirmed that all employment-based adjustment of status applicants must use the "Final Action Dates" chart. Family-based adjustment of status applicants in all categories except F2A must use the "Dates for Filing" chart. The filing cutoff for EB-3 India is at March 1, 2009, while that of EB-2 India is June 2, 2009.… [link]
4/22/2020 - Trump Executive Order Will Delay Green Cards by 60 Days
If there is one thing to learn from the last 3 years of the Trump presidency, it is this: don't give too much credence to a Trump tweet. On April 20, Trump tweeted that he would be signing an executive order suspending all immigration during the coronavirus outbreak. Such a move would have wreaked further havoc on the nation's economy, not to mention its healthcare infrastructure. The tweet caused panic in the immigrant community. The administration has now mostly retracted the inital claim. Per the latest reports, the executive order will essentially make all green card categories unavailable for the next 60 days, with some possible exceptions for essential workers. The order has NO IMPACT on nonimmigrant categories such as F-1, H-1B, H-4, L-1, L-2, TN, etc. For the vast majority of Indian or Chinese-born immigrants, who already face exorbitant green card backlogs, a 60 day delay does not change much.
4/2/2020 - USCIS Response to Coronavirus Pandemic
USCIS has announced a number of measures to address the COVID-19 pandemic. All in-person interviews at USCIS district offices are postponed, and in some cases the interview requirement is being waived. USCIS will reuse previously submitted biometrics for processing I-765 applications for employment authorization. Premium processing service is currently unavailable for all I-129 and I-140 filings, with no confirmaton of when the service will resume. The deadlines for all I-290B filings and all RFEs and NOIDs issued between March 1 and May 1, 2020 are automatically extended by 60 days. DHS has rejected calls from advocates urging the agency to automatically extend all I-94s by a certain number of days to assist those in jeopardy of falling out of status due to the pandemic.
3/27/2020 - USCIS Announces Completion of FY2021 H-1B Lottery
USCIS has completed the lottery for this year's H-1B cap cases. Unlike in prior years, the FY2021 lottery involved a pre-registration window from March 1 to March 20. Lottery winners (identified as "Selected" in the online registration system) will be announced on March 31. Selectees will have the opportunity to file full cap petitions during a 90 day window from April to June of this year. If there is a shortage of petitioners filing during the filing window, USCIS may pull more selected cases from the batch of cases that were "Submitted" during the registration window but not selected. These newly selected lottery winners would have a new 90 day window in which to file their petitions. At this time it is unclear if there will be any cases selected from the wait list. Moreover, USCIS has reaffirmed that it may require employers who decide not to file full cap petitions for their lottery winners to justify that decision based on valid reasons.
3/17/2020 - April Visa Bulletin Issued
The Department of State has released the Visa Bulletin for April 2020. USCIS has confirmed that all employment-based adjustment of status applicants must use the "Final Action Dates" chart. Family-based adjustment of status applicants in all categories except F2A must use the "Dates for Filing" chart. The filing cutoff for EB-3 India is at January 22, 2009, while that of EB-2 India is May 25, 2009.… [link]
2/28/2020 - Initial H-1B Registration Period Opens at Noon Eastern on March 1
USCIS announced that the initial registration period for the FY2021 H-1B cap will open at noon Eastern on March 1 and run through noon Eastern on March 20. During this period, prospective petitioners and representatives will be able to fill out prospective petitioner and beneficiary information and submit their registrations for consideraton under the lottery.… [link]
2/7/2020 - District Court Invalidates "Unlawful Presence" Memo Applicable to F, J and M Students
As we reported earlier, USCIS issued a memo revising its interpretation of "unlawful presence" as applied to F, J and M students. Previously, such students could accrue "unlawful presence" only upon notice from USCIS or an immigrant judge. Under the new memo, USCIS would have had the ability to retroactively find the student to be accruing unlawful presence from the time of some prior status violation. This retroactive finding could have subjected the student to an immediate 3 or 10 year bar from re-entry to the United States. This memo was challenged in a federal distict court in North Carolina, and has been overturned. While the DHS is likely to appeal this decision to the Court of Appeals, the memo remains invalid for the time being. This means that the prior "unlawful presence" rules apply.
1/30/2020 - USCIS Announces Re-Implementation of New Public Charge Rule
In 2019, the Department of Homeland Security promulgated a controversial new definition of the "public charge" rule, but federal district courts in numerous states blocked its implementation on an interim basis. The Supreme Court has now undone these lower court injunctions, meaning that the public charge rule will be back in effect from February 24, 2020 (except in Illinois, where a state injunction remains in place). The lower courts still have an opportunity to overturn the rule -- when they finally adjudicate the cases on the merits. For now, USCIS is proceeding with its implementation of the rule. The Department of State is likely to follow suit very shortly, and apply the new public charge rule to visa applicants at overseas consulates. Under the Immigration and Nationality Act, any non-US citizen who is likely to become a "public charge" is inadmissible to the United States -- meaning that he/she is not eligible for visa stamping, admission into the country, or adjustment of status. Also, those who are found inadmissible within 5 years of legal entry to the country can be deported. Under the new regulation, DHS is defining the term "public charge" to essentially mean anyone who is likely to depend on public benefits in the future. DHS officers will make a public charge determinaton on a case-by-case basis based on the following factors: the alien…s age; health; family status; assets, resources, and financial status; and education and skills. This rule also defines the term …public benefit… to include cash benefits for income maintenance, SNAP, most forms of Medicaid, Section 8 Housing Assistance under the Housing Choice Voucher (HCV) Program, Section 8 Project-Based Rental Assistance, and certain other forms of subsidized housing. Effective February 24, 2020, USCIS forms for those seeking to adjust, change or extend status will ask questions about the applicant's satisfaction of the public charge requirement.… [link]
1/23/2020 - February Visa Bulletin Issued
The Department of State has released the Visa Bulletin for February 2020. USCIS has confirmed that all employment-based adjustment of status applicants must use the "Dates for Filing" chart, except that certain Current categories under EB-3 can use the "Final Action Date" chart. Family-based adjustment of status applicants in all categories except F2A must also use the "Dates for Filing" chart. The filing cutoff for EB-3 India remains unchanged at February 1, 2010, while that of EB-2 India likewise remains at July 1, 2009. These two dates are identical to the corresponding dates in the last few Visa Bulletins.… [link]
1/2/2020 - January Visa Bulletin Issued
The Department of State has released the Visa Bulletin for January 2020. USCIS has confirmed that all employment-based adjustment of status applicants must use the "Dates for Filing" chart, except that certain Current categories under EB-3 can use the "Final Action Date" chart. Family-based adjustment of status applicants in all categories except F2A must also use the "Dates for Filing" chart. The filing cutoff for EB-3 India remains unchanged at February 1, 2010, while that of EB-2 India likewise remains at July 1, 2009. These two dates are identical to the corresponding dates in the last few Visa Bulletins.… [link]
12/6/2019 - USCIS Announces New H-1B Cap Procedures in 2020
USCIS officials have confirmed that the agency will implement an H-1B cap registration period from March 1, 2020 to March 20, 2020. During this registration period, cap applicants will file an electronic form with basic biographic and employer information. The filing fee for registration is $10. After the registration period is over, USCIS will conduct a lottery and announce lottery winners, most likely some time in April. Lottery winners will be given a 90 day window during which time a full H-1B cap petition can be filed. Any registrant who is not picked in the lottery cannot file an H-1B cap petition.
While Congress has allocated roughly 85,000 H-1B visas per year, we estimate that USCIS will select around 100,000 - 110,000 registrants under the lottery (to account for anticipated denials and withdrawals). In the unlikely event that not enough registrants apply during the initial period, USCIS will conduct another registration period between March 21, 2020 and March 31, 2020.… [link]
11/26/2019 - December Visa Bulletin Issued
The Department of State has released the Visa Bulletin for December 2019. USCIS has confirmed that all employment-based adjustment of status applicants must use the "Dates for Filing" chart, and family-based adjustment of status applicants in all categories except F2A must also use the "Dates for Filing" chart. The filing cutoff for EB-3 India remains unchanged at February 1, 2010, while that of EB-2 India likewise remains at July 1, 2009. These two dates are identical to the corresponding dates in the October and November 2019 Visa Bulletin.… [link]
11/8/2019 - USCIS Adopts $10 Cap Registration Fee
USCIS has previously indicated that it intends to proceed with a pre-registration system for H-1B cap cases. The agency has not fully confirmed that this system will be in effect for April 2020, although that outcome seems increasingly likely. Pre-registration can be done by a company or its attorney by paying $10 per case, and batch payments will be allowed. USCIS will conduct a lottery based on the pre-registered cases, and lottery winners will then be able to file full H-1B cap cases.… [link]
10/31/2019 - USCIS Premium Processing Fee Increasing
Effective December 2, 2019, the premium processing fee for cases filed under Form I-129 (Petition for a Nonimmigrant Worker) and Form I-140 (Immigrant Petition for Alien Workers) will increase from $1,410 to $1,440.… [link]
10/25/2019 - DOS Promulgates Public Charge Rule
On October 11, 2019, DOS published its own final rule covering the "public charge" issue that has been in the news. Consular officials can deny visa applications on the basis of inadmissibility under the public charge ground if the applicant cannot show sufficient financial means. DOS has published a sample DS-5540, Public Charge Questionnaire for public comment. The DOS public charge provisions will not go into effect until the DS-5540 Questionnaire is finalized, which will take a few months.
10/18/2019 - November Visa Bulletin Issued
The Department of State has released the Visa Bulletin for November 2019. USCIS has confirmed that all employment-based adjustment of status applicants must use the "Dates for Filing" chart, and family-based adjustment of status applicants in all categories except F2A must also use the "Dates for Filing" chart. The filing cutoff for EB-3 India is February 1, 2010, while that of EB-2 India is July 1, 2009. These two dates are identical to the corresponding dates in the October 2019 Visa Bulletin.… [link]
10/12/2019 - DHS Public Charge Final Rule in Limbo
USCIS earlier issued a final rule implementing new public charge regulations that expanded the government's ability to find foreign nationals inadmissibile for financial reasons. The SDNY federal district court has enjoined and restrained DHS and USCIS from enforcing this rule until it reviews whether the agencies promulgated the rule in violation of law. The law has been challenged by various charitable groups.
10/7/2019 - Presidential Proclamation on Health Care
President Trump has issued a new proclamation regarding health insurance for visa applicants. If you are applying for an immigrant visa, including a diversity visa, on or after November 3, 2019, you must demonstrate to the consular officer at the time of interview that you will be covered by approved health insurance within 30 days of entry into the United States or have the financial resources to pay for reasonably foreseeable medical costs. There are a few categories of individuals who are exempt from this requirement, such as children under 18 who are accompanying immigrating parents, and returning SB-1 applicants.
8/15/2019 - USCIS Has Returned All Cap-Rejected Cases under the FY2020 H-1B Cap
USCIS has announced that it has returned all fiscal year (FY) 2020 H-1B cap-subject petitions that were not selected in our computer-generated random selection process.… [link]
8/12/2019 - DHS Issues "Public Charge" Regulations
Under the Immigration and Nationality Act, any non-US citizen who is likely to become a "public charge" is inadmissible to the United States -- meaning that he/she is not eligible for visa stamping, admission into the country, or adjustment of status. Also, those who are found inadmissible within 5 years of legal entry to the country can be deported. Under new regulations effective August 14, 2019, DHS is defining the term "public charge" to essentially mean anyone who is likely to depend on public benefits in the future. DHS officers will make a public charge determinaton on a case-by-case basis based on the following factors: the alien…s age; health; family status; assets, resources, and financial status; and education and skills. This rule also defines the term
…public benefit… to include cash benefits for income maintenance, SNAP, most forms of Medicaid, Section 8 Housing Assistance under the Housing Choice Voucher (HCV) Program, Section 8 Project-Based Rental Assistance, and certain other forms of subsidized housing. Going forward, low income non-citizens must consult with an immigration attorney prior to enrolling in any public benefit program.… [link]
7/24/2019 - DHS Issues New EB-5 Regulations
DHS has redefined key provisions within EB-5 law. The investment thresholds were previously $500,000 for Targeted Investment Areas (TEAs) and $1,000,000 for everywhere else. The new thresholds for EB-5 are $900,000 and $1.8 million, respectively. The new rule also redefines the definition of TEA to significantly reduce the number of locations that can qualify for the reduced (now $900,000) investment threshold.… [link]
7/23/2019 - DHS Expands the Scope of Expedited Removal
First authorized by Congress in 1996, "expedited removal" allows immigration officials to fast-track the deportation of certain undocumented immigrants "without further hearing or review." Previously, DHS regulations limited the use of expedited removal to people detained within 100 miles of the border and within 14 days of arrival to the US. Under new regulations, DHS is now expanding that authority to include anyone in the United States who entered within the last 2 years. The ACLU is expected to challenge the new regulation in court. The bottom line for legal immigrants is that they should keep their immigration documentaton with them at all times, especially if traveling (even domestically).
7/19/2019 - USCIS Planning to Make Naturalization Test More Difficult
As part of a broader movement to restrict immigration benefits, USCIS has announced its plans for updating its naturalization test questions. The agency will also assess potential changes to the speaking portion of the test. The Immigration and Nationality Act imposes English and civics requirements for naturalization. The latest announcement signals that USCIS believes that its current implementation of these requirements is too lax.… [link]
7/11/2019 - U.S. House Passes H.R. 1044
The U.S. House of Representatives has passed H.R.1044 - The Fairness for High-Skilled Immigrants Act of 2019. To become law, a companion bill (S.386) must pass the U.S. Senate and then a reconciled version of the bill must be signed by President Trump. If enacted, this law would greatly expedite employment-based green card processing for Indian and Chinese nationals, reducing typical visa wait times from decades to a few years. Click here for our analysis of the bill and its likelihood of passage.… [link]
6/10/2019 - New Zealand Added to List of E-1 and E-2 Eligible Countries
Certain New Zealand nationals can now request a change of status to the E-1 nonimmigrant trader classification and the E-2 nonimmigrant investor classification under Public Law 115-226. … [link]
4/22/2019 - Israeli Nationals Eligible for Treaty Investor Visas
Certain Israeli nationals who are lawfully present in the United States will soon be able to request a change of status to the E-2 treaty investor classification. Beginning May 1, eligible Israeli nationals already in the United States in a lawful nonimmigrant status can file Form I-129, Petition for a Nonimmigrant Worker, to request a change of status to E-2 classification, or a qualifying employer can file the petition on their behalf.… [link]
4/1/2019 - USCIS Creates H-1B Employer Data Hub
USCIS has created an H-1B Employer Data Hub to provide information to the public on employers petitioning for H-1B workers. The website provides historical approval and denial rates for all H-1B petitioners.… [link]
2/28/2019 - USCIS Publishes Revealing H-1B Statistics
Over the last 10 years or so, USCIS has targeted H-1B petitions for closer scrutiny, especially in cases involving third party worksites. Despite that trend, in Fiscal Year 2015, 95.7% of all petitions were approved, and only 22.3% of petitions received an RFE. That story has changed under the new administration. In Fiscal Year 2018, 84.5% of petitions were approved, and 62.3% of cases (i.e. most petitions) received RFEs. The approval rate for the current fiscal year is even lower, at 75.4%.… [link]
2/8/2019 - USCIS Accepting Copies of Negative P Visa Consultations Directly from Labor Unions
USCIS will now accept copies of negative consultation letters directly from labor unions relating to a current or future P nonimmigrant visa petition. A consultation letter from a U.S. labor organization is generally required for petitions in the P visa classification, which covers athletes, artists, entertainers and their essential support personnel. A similar prior announcement applied to negative consultation letters for O visa petitions. In the past, only consultation letters directly submitted by petitioners would be accepted by USCIS.
1/31/2019 - USCIS Revises H-1B Cap Filing Procedures
The DHS has issued a final rule that revises the H-1B cap filing process. In response to DHS's initial proposal for this rule, our office submitted a comment letter arguing that the new rule illegally disadvantaged foreign degree holders, contrary to Congressional intent. The Final Rule makes references to our letter but retains the system contained in the proposal. Effective this cap season, all H-1B applications (whether for U.S. Master's degree holders or not) will first be considered under the regular cap of 65,000 visas. Any remaining U.S. Master's degree holders will then be considered under the 20,000 exemption. Effective next cap season, USCIS will institute a cap pre-registration period starting March 18, 2020. This period will last at least 14 days, during which time cap applicants will file a free pre-registration form with basic biographic and employer information. Based on these submissions, USCIS will conduct a lottery, and allow lottery winners to file full petitions during a 90 day window. … [link]
12/31/2018 - 2018 Was a Record Year for ICE Raids of H-1B Businesses
2018 has been a record year for Homeland Security Investigations (HSI), the division of ICE that is charged with investigating businesses, including H-1B employers, for compliance with immigration laws. From Oct. 1, 2017, through May 4, 2018 HSI opened 3,510 worksite investigations. That number is nearly double the number of investigations opened in Fiscal Year 2017 (October 2016 to September 2017). While more recent statistics have not been published, we expect similarly high numbers for the upcoming year. It is important for H-1B employers to be aware of their rights and responsibilities in case of an ICE raid. The following memo provides useful pointers, but is no substitute for legal advice from an experienced attorney.
12/24/2018 - USCIS Mostly Unaffected by Federal Government Shutdown
Due to the deadlock between Congress and the President over "border wall" funding, much of the federal government has been shut down. However, agencies performing emergency services and self-funded agencies are mostly exempt. The current lapse in annual appropriated funding for the U.S. government does not affect USCIS…s fee-funded activities. There have been some temporary cutbacks to certain programs such as EB-5 and E-Verify.… [link]
12/3/2018 - USCIS Proposes Revision to H-1B Cap Procedures
USCIS has issued a proposed regulation that would create a pre-registration requirement for cap-subject H-1B petitions and change the process so that the 65,000 "regular" lottery is run first, followed by the 20,000 "master's" lottery. Under the pre-registration system, which will not go into effect for the April 2019 cap season, cap applicants would pre-register for a lottery. Lottery winners would then file full H-1B cap petitions with USCIS during a designated filing period. The comment period for the proposal ends on January 2, 2019. A similar rule was proposed in 2011 and never finalized.… [link]
11/30/2018 - USCIS Clarifies 1-in-3-Year Requirement for L-1s
USCIS has clarified that for L-1 visa purposes, the one-year foreign employment requirement is only satisfied by the time a beneficiary spends
physically outside the United States, except for brief periods in B status. The 3 year clock does not run for any employment in the US on H-1B or E-3 status, provided that it is for the eventual L-1 employer. … [link]
11/8/2018 - USCIS Slowly Expanding the Scope of NTA Policy
As reported earlier, USCIS has stated a policy of issuing deportation notices (aka Notices to Appear or NTAs) to visa status applicants whose cases are denied, resulting in unlawful presence. USCIS stated that it would be adopting this NTA policy in stages. The agency has now confirmed that starting November 19, 2018, it will start issuing NTAs in certain denials of Forms I-914/I-914A, I-918/I-918A, I-360, I-730, I-929, and I-485 based on these categories. Employment-based filings are still unaffected for now.… [link]
10/30/2018 - USCIS to End Self-Scheduled Info Pass Appointments
Currently, any beneficiary of an immigration process can set up an Info Pass appointment at a local USCIS District Office to resolve case problems. USCIS will soon roll-out the end of self-scheduled Info Pass appointments. Thereafter, immigration beneficiaries must call USCIS Customer Service to voice their concerns. If needed, personnel at the USCIS Contact Center will help schedule an appointment for the beneficiary.… [link]
9/28/2018 - USCIS Issues Reminder About Lack of Work Authorization for Cap Gap Students from October 1, 2018
USCIS has issued a reminder that H-1B applicants benefiting from "cap gap" extension of OPT status can stay in the US after September 30, 2018 while the H-1B case is pending, but cannot work after that date until the case is approved.
9/26/2018 - USCIS Provides Update on its Notice to Appear (NTA) Policy
As reported earlier, USCIS has stated a policy of issuing deportation notices (aka Notices to Appear or NTAs) to visa status applicants whose cases are denied, resulting in unlawful presence. It was previously unclear how quickly the NTA would be issued. USCIS has confirmed that, for now, NTAs will not be issued in cases of employment-based petitions or humanitarian applications. Further, denial letters will be issued so applicants have "adequate notice" before an NTA is issued under this policy. While "adequate notice" has not been officially defined, unofficially USCIS has stated that it will not issue NTAs in status-ending denial cases until the 30 days timeframe for motions/appeals has passed, or while a motion/appeal is pending.
9/21/2018 - USCIS Proposal Would Expand Inadmissibility Based on "Public Charge" Grounds
Under long-standing rules, applications for admission to the US (including I-485 applicants) must show that they have enough financial resources to avoid becoming a "public charge." A proposed USCIS rule would expand the definition of "public charge" to include recipients of certain government-funded programs including non-emergency Madicaid, Medicare Part D Low-Income Subsidy Program, Supplemental Nutrition Assistance Program and several housing programs. Importantly, the proposal does not penalize usage of Affordable Care Act Marketplace (aka Obamacare) subsidies or the CHIP program. Having a medical condition that is likely to require long-term treatment may also be a negative factor. I-485 applicants with a public charge problem could be allowed to adjust by paying a minimum $10,000 bond. I-129 and I-539 applicants will have to meet the "public charge" standard, and most H or L professionals who are paid prevailing wages should not be affected. Interested parties have 60 days to comment before the rulemaking process is finalized.… [link]
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.
8/10/2018 - 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]
7/6/2018 - 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]
6/12/2018 - 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]
5/10/2018 - 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]
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]
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]
12/15/2017 - 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]
11/19/2017 - 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]
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]
9/5/2017 - 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]
8/4/2017 - 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.
7/5/2017 - 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]
6/07/2017 - 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]
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]
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]
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.
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.
7/22/2015 - USCIS Provides Final Guidance on When An Amended Petition is Required Given Worksite Changes
Click here for an automatic form that allows you to contact your district's Congressional representatives about the need for Comprehensive Immigration Reform.
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.
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The House of Representatives has passed a very significant bill, H.R. 1044, that would fundamentally change the landscape for employment-based green cards for Indian and Chinese nationals. Read our analysis of the bill, its chance of final passage, and its likely impact.
We filed a complaint requesting DHS to take down their highly partisan "Walls Work" website, which violates OMB/DHS guidelines under the Information Quality Act.
We have submitted a comment letter to the DHS highlighting numerous legal flaws in the proposed H-1B cap registration system.
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."