News and Insight
On Tuesday, a federal judge in California granted a preliminary injunction, preventing USCIS from increasing filing fees that were scheduled to go into effect on Friday, October 2, 2020. This means that as long as the injunction is in place, USCIS fees will stay the same as they are now and not increase as planned. The main issue, among others, is whether former acting Secretary of the Department of Homeland Security (DHS) Kevin McAleenan and current acting secretary Chad Wolf had the authority to issue USCIS fee increases. The plaintiffs argued that McAleenan and Wolf were unlawfully appointed to their positions. The judge found that the plaintiffs were “likely to succeed” on their arguments and granted the injunction to prevent the fee increases. The government likely will try to stay, or stop, the injunction, and we will provide updates if anything changes. This has significant effects on most noncitizens. If it is allowed to go into effect, the rule will increase fees for H-1B petitions by 21% (from $460 to $555), impose higher fees on companies with more than 50 employees with at least 50% of their workforce in H-1B and L-1 status, increase premium processing times, increase fees work permit applications by 34% (from $410 to $550), and increase the USCIS fee to become a U.S. citizen by 80%, (from $640 to $1,160). The fee increase also would significantly affect asylum applicants, charging a $50 fee for the first time in U.S. history. In fact, U.S. would become one of a handful of countries to charge a fee for asylum cases. The rule would also increase the cost for an asylum applicant to apply for an initial work permit from the zero to $490. Read the decision here: https://www.dropbox.com/s/owywmp4xf1vq47s/Order%20Granting%20Motion%20for%20Preliminary%20Injunction.pdf?dl=0
Highly anticipated October 2020 Visa Bulletin is now out and is available at: https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2021/visa-bulletin-for-october-2020.html All of the Final Action and Application Filing Dates have advanced at a very rapid pace, in anticipation of the FY 2021 annual limit being approximately 261,500, an all-time high. Pending demand, in the form of Applications for Adjustment of Status, and documentarily qualified immigrant visa applicants, is well below the estimated annual limit of 261,500. As such, Adjustment of Status applications filed early in FY 2021 are most likely to be adjudicated during the upcoming fiscal year. Per the Department of State, “Rapid Forward Movement” is expected until January 2021 in the Employment-based Second and Third categories for India and China. Be sure to check which Chart—Final Action Dates or Dates for Filing—USCIS will use for accepting Adjustment of Status Application for the month of October 2020.
The U.S. Department of State (DOS) has authorized U.S. consular posts to give “high priority” to K visa cases such as K-1s [foreign-citizen fiancé(e) of a U.S. citizen] and K-3 [foreign-citizen spouse of a United States (U.S.) citizen] Applicants should check the website of their nearest U.S. Embassy or Consulate for updates on what services that post is currently able to offer. The I-129F Petition for Alien Fiancé(e) is typically valid for four months; however, consular officers may revalidate the I-129F petition in four month increments. Per DOS, for most cases impacted by the suspension of routine visa services or COVID-19 travel restrictions it will not be necessary to file a new I-129F petition.
U.S. CONSULAR POST UPDATE: TEMPORARY WAIVER OF IN-PERSON INTERVIEW FOR A NONIMMIGRANT VISA IN THE SAME CLASSIFICATION
by Rabindra Singh
On August 25, 2020, the Department of State (DOS) temporarily expanded the ability of consular officers to waive the in-person interview requirement for individuals applying for a nonimmigrant visa in the same classification. Previously, only those applicants whose nonimmigrant visa expired within 12 months were eligible for an interview waiver. The DOS has temporarily extended the expiration period to 24 months. This policy is in effect until December 31, 2020. This change will allow consular officers to continue processing certain nonimmigrant visa applications while limiting the number of applicants who must appear at a consular section, thereby reducing the risk of COVID-19 transmission to other applicants and consular staff. Visa Applicants should review the website of the nearest U.S. embassy or consulate for detailed information on what services are currently available as well as eligibility information and instructions on applying for a visa without an interview.
BY THE NUMBERS: USCIS FURLOUGHS WILL RESULT IN MASSIVE CASE PROCESSING DELAYS AND BACKLOGS
by Scott Girard
In about one week, USCIS plans to furlough roughly 13,400 of its 20,000 employees due to “budget shortfalls.” This is more than two-thirds, or 67%, of its workforce. The furloughs appear to be agency-wide, meaning no office or service center will be spared. The effects of the furloughs would grind USCIS case processing to a very slow crawl. The agency’s processing times have already slowed down due to COVID-19-related closures and, frankly, mismanagement of resources (i.e., rejecting applications for not putting “N/A” or “None” on every line.) However, with more than two-thirds of its employees not working, processing times will likely double or even triple. Let’s take a look at some rough numbers to show the effect of the furloughs. If roughly one-third of USCIS employees are working, case processing times would presumably triple. Here’s how that affects specific applications: Type Current Min Current Max After Furlough Min After Furlough Max Year Range Citizenship Application - Kansas City 6.5 9.5 19.5 28.5 1.6-2.4 Citizenship Application - Chicago 13 19 39 57 3.3-4.8 Marriage Petition 6.5 9.5 19.5 28.5 1.6-2.4 H-1B Petition 2 4 6 12 0.5-1 Adjustment of Status Application 7 13 21 39 1.8-3.3 Work Card Application 4 6 12 18 1-1.5 Travel Document Application 3 5 9 15 0.8-1.3 *These numbers are based on rough estimates and do not take into account the positions or locations of the USCIS employees who will be furloughed or remain working. All processing times were taken from the USCIS website, uscis.gov, and reflect the processing times for the Nebraska Service Center as of 08/20/2020, unless stated otherwise. Right now, citizenship cases in Kansas City take at least 6 months to adjudicate. After the furloughs, it could take at least a year and a half. It’s worse in other places like Chicago. Currently, citizenship cases take more than a year at least to adjudicate. After the furloughs, it could take more than three years at a minimum and even up to five years! The same goes for marriage petitions and applications for adjustment of status, which could take a year and a half at a minimum and possibly more than three years to adjudicate. Even simple applications or petitions that take little time to adjudicate will get delayed for months. For example, H-1B petitions are currently taking 2-4 months to adjudicate. After the furloughs, they could take more than six months. Applications for work permits and travel documents could take more than six months or even more than a year to adjudicate after the furloughs. Even if the remaining employees at USCIS work 60 hours a week (which is unlikely given federal overtime payment requirements and the “budget shortfall”) or somehow increase their output 50%, processing times will likely double, as shown in the chart below. Type Current Min Current Max After Furlough Min After Furlough Max Year Range Citizenship Application - Kansas City 6.5 9.5 13 19 1.1-1.6 Citizenship Application - Chicago 13 19 26 38 2.2-3.2 Marriage Petition 6.5 9.5 13 19 1.1-1.6 H-1B Petition 2 4 4 8 0.3-0.7 Adjustment of Status Application 7 13 14 26 1.2-2.2 Work Card Application 4 6 8 12 0.7-1 Travel Document Application 3 5 6 10 0.5-0.8 Without funding from Congress, USCIS will operate at a dangerously slow rate. Wait times will skyrocket, with applicants waiting months longer on simple applications for work permits and travel documents and years longer on petitions and citizenship and green card applications. On October 2, 2020, fees for most applications will increase significantly. However, it is hard to say how this will affect USCIS’s budget, considering fewer people are applying for benefits right now. Even when funding arrives at USCIS, the effects of the furlough could last years, causing further delays. Applicants and attorneys should be ready to wait.
As many are aware, USCIS is set to furlough 13,000 of its employees starting August 30, 2020. This action will further harm the U.S. economy and bring the legal immigration system to a halt. On Tuesday, August 18, 2020, Senator Patrick J. Leahy, the Vice Chair of the Senate Appropriations Committee, wrote a letter addressed to DHS and USCIS requesting to delay of the unnecessary furloughs of over 13,000 USCIS staff starting August 30, 2020. The full text of letter can be accessed at: https://www.appropriations.senate.gov/imo/media/doc/LeahyUSCIS81820.pdf Notably, in his letter, Senator Leahy writes: “However, I am troubled by the fact that USCIS is still proceeding with furloughs for this fiscal year despite the fact that the agency is consistently projecting to end the fiscal year with a sizeable carryover balance. The resulting carryover balance exists even after you factor in paying staff through the fiscal year. To put it more plainly, USCIS could pay all of its staff through the end of the fiscal year, avoid furloughs entirely, and still end the fiscal year with a sizeable carryover balance. *** …without a functioning legal immigration system, our economy is likely to be impacted as critical future employees or employers will be unable to complete their immigration process. Additionally, some families have waited nearly 24 years to lawfully immigrate to the United States. The decision to shut down the legal immigration system by furloughing these employees will harm our economy, have adverse impacts on trade, encourage unlawful immigration, and is patently unfair to our federal workforce and to individuals who have waited so long to be reunited with their families.” With 10 days in hand and dark clouds of furloughs looming over head, the lawmakers in both the House and Senate are absent from the nation’s capital. House Speaker Nancy Pelosi told lawmakers to return by the end of this week to address legislation to support the U.S. Postal Service (USPS). Furloughing USCIS employees coupled with crippling USPS is a perfect recipe for effectively shutting down legal immigration in the United States without making any statutory or regulatory change. Though no formal statement has been issued by Speaker Pelosi’s office, hopefully, the lawmakers may also address USCIS funding when addressing USPS legislation so that the U.S. economy is not further adversely impacted without a properly functioning legal immigration system.
HSD Immigration is glad to share that Global Immigration Review featured an Article titled “Familial Relationship” Within The Context Of PERM Labor Certification Application by our Founding Partner, Rabi Singh. To read full Article, please visit Global Immigration Review’s website at: https://globalimmigrationreview.com/familial-relationship-within-the-context-of-perm-labor-certification-application/
EXERCISE CAUTION: USCIS TO IMPLEMENT NEW VERSION OF FORM I-765 EFFECTIVE AUGUST 25, 2020
by Rabindra Singh
Applicants should exercise caution when submitting applications for Employment Authorization Document (EAD) during fourth week of August 2020. Note that USCIS will not accept Applications for EAD on or after August 25, 2020, if you do not file them with the updated edition of Form I-765 and I-765WS and the correct fees. What to Know About Sending Form I-765 to USCIS: The current edition of Forms I-765 and I-765WS, dated 12/26/19 If it is postmarked before Aug. 25, 2020, USCIS will continue to accept the 12/26/19 edition. If it is postmarked on or after Aug. 25, 2020, we will not accept the 12/26/19 edition. The updated edition of Forms I-765 and I-765WS, dated 08/25/20 If it is postmarked on or after Aug. 25, 2020, USCIS will accept the 08/25/20 edition. If it is postmarked before Aug. 25, 2020, USCIS will not accept the 08/25/20 edition.
Today, August, 14, 2020, USCIS conducted a second H-1B Cap Lottery/Random Selection (H-1B Lottery) for FY2021 to utilize the unused H-1B visa numbers. The first H-1B Lottery was conducted toward the end of March 2020 and submitted Registrations were put in “Selected” and “Submitted” status. Selected Registrations during the first H-1B Lottery were given a 90-day window (i.e. until June 30, 2020) to file a complete H-1B Cap Petition. Since some employers chose not to file H-1B Cap Petition(s) based on previously selected Registrations; USCIS conducted an unprecedented second H-1B Lottery for FY2021 to utilize the unused visa numbers. It has started uploading Registration Selection Notices to Access USCIS Online Services Accounts. Employers and their legal representatives, if any, should login and check the case status for each Registration previously marked as in “Submitted” status. USCIS is providing 90-day window to file H-1B Cap Petitions based on Registrations selected in this second H-1B Lottery. Specifically, Employers need to file H-1B Cap Petitions between August 17, 2020 to November 16, 2020. We advise employers to check their USCIS Online Services Account for at least the next week to check on the status of each Registration in “Submitted” status in case the data entry and receipt notice generation by USCIS gets delayed because of the COVID-19 pandemic, as it did in March.
On August 7, 2020, the U.S. Department of State (DOS) announced that it will NOT require Visa Applicants to complete nor present the DS-5540, Public Charge Questionnaire, while the preliminary injunction ordered by the United States District Court for the Southern District of New York (SDNY) remains in effect. To recall, on July 29, 2020, the United States District Court, SDNY, enjoined the DOS from “enforcing, applying, implementing, or treating as effective” its October 2019 interim final rule and accompanying Foreign Affairs Manual guidance related to the public charge ground of visa ineligibility. The DOS is in the process of updating its guidance to consular officers on how to proceed under the preliminary injunction. Until further guidance, the DOS will refuse visa applications that appear to be ineligible under INA 212(a)(4). Such refusals will be for administrative processing to allow for consultation with the DOS, including legal review to ensure compliance with applicable court orders. The DOS further stated that Visa Applicants are not requested to take any additional steps at this time and should attend their visa interviews as scheduled.
USCIS “NOT” TO APPLY NEWLY IMPLEMENTED PUBLIC CHARGE RULE DURING COVID-19 NATIONAL HEALTH EMERGENCY
by Rabindra Singh
On July 29, 2020, the U.S. District Court for the Southern District of New York (SDNY) in State of New York, et al. v. DHS, et al. and Make the Road NY et al. v. Cuccinelli, et al. enjoined the Department of Homeland Security (DHS) from enforcing, applying, implementing, or treating as effective the Inadmissibility on Public Charge Grounds Final Rule for any period during which there is a declared national health emergency in response to the COVID-19 outbreak. On July 31, 2020, USCIS issued an announcement in response to the SDNY injunction stating that it will NOT apply the Public Charge rule implemented on February 24, 2020. USCIS further clarified that as long as the July 29, 2020, SDNY decision is in effect, USCIS will apply the 1999 public charge guidance in place of the Public Charge Rule implemented on Feb. 24, 2020, to the adjudication of any application for adjustment of status on or after July 29, 2020. In addition, USCIS will adjudicate any application or petition for extension of nonimmigrant stay or change of nonimmigrant status on or after July 29, 2020, consistent with regulations in place before the Public Charge Rule was implemented; in other words, USCIS will not apply the public benefit condition. Further, USCIS will NOT consider any information provided by an applicant or petitioner that relates to the Public Charge Rule, including information provided on the Form I-944, or information on the receipt of public benefits in Part 5 on Form I-539, Part 3 on Form I-539A or Part 6 on Form I-129 for applications and petitions that USCIS adjudicates on or after July 29, 2020. USCIS has advised that applicants and petitioners whose applications or petitions are postmarked on or after July 29, 2020, should NOT include the Form I-944 or provide information about the receipt of public benefits on Form I-485, Form I-129, or Form I-539/I-539A. USCIS is expected to issue guidance regarding the use of affected forms. In the interim, USCIS confirmed that it will NOT reject any Form I-485 on the basis of the inclusion or exclusion of Form I-944, nor Forms I-129 and I-539 based on whether Part 6, or Part 5, respectively, has been completed or left blank.
On July 20, 2020, the U.S. Department of Labor (DOL) Office of Foreign Labor Certification (OFLC) announced a 60-day public comment period on proposed revisions to existing Form ETA 9089. The deadline to submit comments is September 18, 2020. Before highlighting and discussing revisions, it is important to point that the proposed Form ETA 9089 uses the terminology “foreign worker” in place of “Alien!” It took DOL no less than 15 years to even consider making this change. As such, no more extra-terrestrial Aliens on the Form ETA 9089s! Chuckles aside, per DOL’s Supporting Statement the proposed Form ETA-9089 will help in reorganizing data collection into a series of appendices to provide greater clarity on program requirements, reduce overall reporting burden, facilitate better quality applications for government review, and promote greater efficiency in the issuance of labor certification decisions under the (Program Electronic Review Management) PERM program. Though the size of the main form section has been reduced in length to 7 pages, four (4) new appendices have been added. Including appendices, the proposed form will have 16 pages as compared to 15 on the existing one. Major changes to the current form include the following: Eliminating two sections of the form to streamline the application. Sections A and B of the current form are being deleted and/or incorporated into other sections. Sections of the proposed Form ETA-9089 are being renumbered, such that Sections C, D, and E of the current form will be Sections A, B, and C of the proposed form; Streamlining the application process for employers by removing information on the foreign worker to a separate appendix, which will allow to reuse applications that relate to similar job opportunities; Adding a new section on the Area of Intended Employment to allow the employer an opportunity to clarify information for potential roving employees and to ensure and verify that the worksite location is the same as the location noted on the Form ETA-9141; Eliminating duplicative fields related to prevailing wage information to those collected on the Form ETA-9141, Application for Prevailing Wage Determination (Form ETA-9141). Further, in order to leverage key information from the Form ETA-9141, the proposed on-line version of Form ETA-9089 under PERM system will automatically pre-populate all contact information from the Form ETA-9141, significantly reducing the time and burden for repeated online data entry; Reorganizing sections on recruitment to allow the agency to streamline the data collection and processing based on circumstances that have widely varying recruitment requirements; and Changing the name of the Employer Declaration section to Employer Labor Condition Statements on the proposed form to increase continuity of the form and to ensure the employer attests and acknowledges that the application submitted was filed in accordance to 20 CFR 656.10(c). As mentioned earlier, the new Form ETA-9089 will contain following four (4) new appendices: Appendix A: Foreign Worker Information – The DOL is proposing new Appendix A by moving information from Sections D, J, and K on the current form to consolidate relevant information about the foreign worker and to resolve the issue of not having a space to list special skills, certifications, etc. This change will allow the DOL to better assess that the employer did not reject U.S. workers who applied for the position for lawful, job-related reasons. Filing the proposed form along with Appendix A will expand the information collection fields to allow the employer to provide more extensive information as to the foreign worker’s qualifications, education, skills, and abilities. Appendix B: Additional Worksite Information –Proposed new Appendix B will ensure that all places of employment are identified and work will not be performed in the geographic areas other than those the employer identified. In addition, the creation of this new appendix will allow it to align with Form ETA-9141, Appendix A, to account for variability in prevailing wages between different worksites. Appendix C: Supplemental Information – Appendix C will provide employer the opportunity to affirmatively provide additional information for determining whether the foreign worker’s qualifications meet those required for the job being offered by allowing employers to explain their specific need for special requirements not considered normal for the occupation in which the offered job is classified. This document will allow the employer additional space to provide explanations based on its responses to Section G on the proposed Form ETA-9089. Appendix D: Special Recruitment for College and University Teachers – Appendix D will allow the employer to provide additional recruitment information under 20 CFR 656.18. Specifically, Appendix D expands the fields to allow the employer an opportunity to provide more detailed information as to why the foreign worker was more qualified than the U.S. worker who applied for the job. Appendix D is comprised of fields located in Section I.B of the current form. Note that in circumstances where it is not practical to collect supporting documentation using a standard OMB-approved appendix, the PERM system will permit an employer to upload documentation supporting the application in an acceptable digitized format (e.g., Adobe PDF, Microsoft Word, .TXT, etc.). An example of such an electronically uploaded document is provided by Question E.2 of the proposed form, where an employer is required to attach a completed Form ETA-9141 to abide by supervised recruitment requirements in accordance with 20 CFR 656.21. Furthermore, the redesign of the current form and creation of different appendices will also allow the DOL to leverage technology to more easily automate processes and reduce burden. The current form is designed such that it must be completed as a whole for each individual application, thus requiring an applicant to repeatedly input information that may often be the same for an employer or for the agent or attorney completing an application on the employer’s behalf. By separating the form into more manageable sections and appendices, it will better allow for additional information that may be auto-populated by the system. Some other notable proposed changes to the Form ETA-9089 include the following: Employer to provide ‘number of current employees on payroll in the area of intended employment’ in Section A of the Form. Attorneys to provide following details in Section C of the proposed Form: State Bar Number(s), State of highest court where attorney is in good standing; and Name of the highest court where attorney is in good standing. Note that an Attorney will be required to enter only one state bar number even if the attorney is licensed in more than one state. Employer needs to identify whether the attorney/agent representing the foreign worker is also contracted with the employer. The job opportunity and wage information data will be directly imported in from the Form ETA-9141using PWD tracking number. Using the PWD tracking number to link and pre-populate certain areas of the Form ETA-9089 will limits any modification between the approval of the PWD and the filing of the Form ETA-9089, thus reducing potential clerical errors that could result in a request for information, Audit Notification or Denial. In Section E, any additional condition about the offered wage can be mentioned. For example, “the wage rate does not account for future increases due to annual cost of living increases or allowances.” This section can also be used to describe any bonuses, fringe benefits, subsidized housing or meals, or any other benefits associated with the job opportunity, as applicable. The Section F ( Area of Intended Employment Information) on the proposed Form requires to identify whether the worksite location is business premises, employer’s private household (including live-in and domestic household workers), employee's private residence (when work is performed directly out of the employee’s residence), or no one specific worksite address or physical location (if there is more than one worksite location or geographic area). Additionally, in Section F, the Metropolitan Statistical Area (MSA)/Occupational Employment Statistics (OES) name, area code and area title needs to be stated. Questions G.4, 4a. and 4b. provide the factors and employer’s attestation to Kellogg requirements, if applicable. Question H.12 – Are the job opportunity’s requirements normal for the occupation – on the existing Form ETA-9089 has been replaced on the new form by question G.9 – whether the employer’s job requirements exceed the Specific Vocational Preparation (SVP) level assigned to the occupation, as shown in the O*NET Job Zones. Note that Appendix C will allow the employer additional space to provide explanations based on its responses to Section G.9 on the Form ETA-9089 by allowing to explain their specific need for special requirements not considered normal for the occupation Last but not the least; proposed Form ETA-9089 will result in elimination of the issuance of the paper-based employment certification decisions by creating a two-page Permanent Employment Certification Approval which would be issued electronically to the employer’s agent or attorney representative, if any, or otherwise directly to the employer, upon approval of their labor certification application.
Appeals to the Board of Immigration Appeals (BIA) may seem increasingly futile due to changes by the current administration, but they are necessary and sometimes fruitful. This is especially true for pro se clients. In a recent three-member panel unpublished decision, the BIA held that judges must make citizenship inquiries before adjudicating asylum applications. This case involved an unadjusted refugee who was illiterate and spoke little English. Our client represented himself at immigration court and had no idea what happened at his trial. He hired us after the judge denied his case. According to the Immigration Judge's (IJ) brief decision, it only looked like a weak asylum case that would be dismissed on appeal. However, the IJ failed to consider the most important question first. What country is he a citizen of? Here, based on simple research, it was apparent that our client was not a citizen of any country. He was stateless. He was born in a refugee camp and his parent’s were stripped of their citizenship status in their birth country after they fled as refugees. The IJ did not make this inquiry and assumed our client was a citizen of the his parent’s country. The IJ denied his asylum application, calling it merely “fear of the unknown.” However, as a stateless individual, he was likely to suffer economic persecution. After reviewing the court file, it also showed our client previously filed an application for adjustment of status, but it was denied because he didn’t respond to a Request for Evidence (RFE). The attorney for the DHS filed the adjustment application with the court along with the Notice to Appear. The IJ failed to even acknowledge the previous adjustment application. Instead, he just focused on the asylum application. On appeal, we presented evidence that our client was not a citizen of his parent’s country and the Board accepted it. Normally, new evidence is not accepted on appeal. However, pro se respondents are often given leeway, especially when it involves important issues like establishing citizenship. We argued the case should be sent back to the IJ to reconsider his asylum application. We also argued that the judge should have decided on his adjustment of status application. The Board issued a three-member panel decision granting the appeal, mainly on the issue of his asylum denial. The Board was convinced by the evidence that he was a stateless individual and remanded the case to the IJ to reconsider the asylum application and also consider the adjustment application. The Board did not decide whether the judge made an error by ignoring the adjustment of status application. However, on remand, the IJ ultimately granted the application for adjustment of status that he ignored the first time around. Link to BIA Decision: Redacted BIA Decision
U.S. businesses utilize the H-1B program to employ foreign workers in specialty occupations that require theoretical or technical expertise in specialized fields, such as scientists, engineers, or computer programmers. As part of the H-1B program, the Department of Homeland Security (DHS) and the Department of Labor (DOL) require U.S. employers to meet specific labor conditions to ensure that American workers are not adversely impacted, while the DOL’s Wage and Hour Division safeguards the treatment and compensation of H-1B workers. During H-1B petition adjudication, USCIS officers issues written notices in the form of a Request For Evidence (RFE) to request missing initial or additional evidence from petitioners who filed H-1B petition on behalf of the foreign national beneficiary. USCIS recently released a chart to the American Immigration Lawyer’s Association with a breakdown of why Requests for Evidence (RFEs) were issued for H-1B petitions. Employers and immigration practitioners should carefully review the below chart when submitting either an H-1B cap or cap-exempt petition to USCIS so that RFE can be avoided. # Reason Description of Reason 1. Specialty Occupation The petitioner did not establish that the position qualifies as a specialty occupation as defined in section 214(i)(1) of the Act and 8 CFR 214.2(h)(4)(ii) and/or that it meets at least one of the four criteria in 8 CFR 214.2(h)(4)(iii). 2. Employer-Employee Relationship The petitioner did not establish that they had a valid employer-employee relationship with the beneficiary, by having the right to control the beneficiary’s work, which may include the ability to hire, fire, or supervise the beneficiary, for the duration of the requested validity period. 3. Availability of Work (Off-site) The petitioner did not establish that they have specific and non-speculative qualifying assignments in a specialty occupation for the beneficiary for the entire time requested in the petition. 4. Beneficiary Qualifications The petitioner did not establish that the beneficiary was qualified to perform services in a specialty occupation per 8 CFR 214.2(h)(4)(iii)(C). 5. Maintenance of Status The petitioner did not establish that the beneficiary properly maintained their current status. This category is reflective of many different reasons that status may not have been maintained. 6. Availability of Work (In-house) The petitioner did not establish that they have specific and non-speculative qualifying assignments in a specialty occupation for the beneficiary for the entire time requested in the petition. 7. LCA Corresponds to Petition The petitioner did not establish that they obtained a properly certified Labor Condition Application (LCA) and that this LCA properly corresponds to the proffered position and terms of the petition. 8. AC21 and Six Year Limit The petitioner did not establish that the beneficiary was eligible for AC21 benefits or was otherwise eligible for an H-1B extension as it appeared that H-1B had hit the six-year limit. 9. Itinerary The petitioner did not meet the itinerary requirement at 8 CFR 214.2(h)(2)(i)(B), which requires petitioners to submit an itinerary with a petition that requires services to be performed in more than one location. The itinerary must include the dates and locations of services to be provided. 10. Fees The petitioner did not establish that they paid all required H-1B filing fees.
Applicants who have a pending affirmative asylum application with U.S. Citizenship and Immigration Services (USCIS) can now check the status of their applications online at uscis.gov/casestatus. Only asylum applicants with an application pending with USCIS will be able to use this new feature to check their case status online. It will not cover defensive asylum applicants whose cases are pending in immigration court. “The new capability increases transparency and assures applicants that they have the most up-to-date and accurate information about their case, 24 hours a day, seven days a week,” said USCIS Director L. Francis Cissna. “We strive to adjudicate all applications and petitions in a timely manner and are working to reduce the impact on processing times by aligning resources appropriately.” Previously, asylum applicants could only check their case status through an asylum office in person or by phone, fax, or email. Non-governmental organizations and stakeholders within the legal community informed USCIS that asylum applicants have found this process is very difficult. Furthermore, giving asylum applicants the ability to check their case status online allows asylum office staff to better focus their resources on scheduling interviews and adjudicating pending cases.
ITS OFFICIAL NOW: USCIS ISSUES NOTICE OF IMPLEMENTATION OF H-1B REGISTRATION PROCESS FOR FY2021
by Rabindra Singh
U.S. Citizenship and Immigration Services (USCIS) announced today the implementation of the H–1B registration process for H–1B cap-subject petitions. Here are important takeaways: The initial H–1B petition registration period will begin on Sunday, March 1, 2020. USCIS intends to close the initial registration period on Friday, March 20, 2020, and will announce the actual end date of the initial registration period on its website at www.uscis.gov. Employers and authorized representatives may start setting up their registration accounts in advance of the registration period opening. USCIS will post the date that employers and authorized representatives may start setting up accounts on its website. A petitioner or its authorized representative must electronically submit a separate registration request naming each individual it seeks to petition for a cap-subject H–1B. A petitioner may only submit one registration per beneficiary in any fiscal year. If a petitioner submits more than one registration for the same beneficiary in the same fiscal year, USCIS will consider all registrations filed by that petitioner for that beneficiary for that fiscal year invalid. USCIS will send notices electronically to all registrants with selected registrations that they are eligible to file an H–1B cap-subject petition on behalf of the individual named in the notice within the filing period indicated on the notice. The account holder who submitted the selected registration will receive notification via email or text message stating that an action has been added to their account, and they will have to log in to see the full notice. USCIS intends to notify registrants with selected registrations from the initial registration period no later than March 31, 2020.
Starting today, March 12, 2019, USCIS will resume premium processing for all H-1B petitions. Per USCIS, in case you received a Request for Evidence (RFE) for a pending petition, you should include the RFE response with the premium processing request. If you received a transfer notice for a pending H-1B petition, and you are requesting premium processing service, you must submit the premium processing request to the service center now handling the petition. You should also include a copy of the transfer notice with your premium processing request to avoid possible delays associated with the receipt of your premium processing request. If your petition was transferred and you send your premium processing request to the wrong center, USCIS will forward it to the petition’s current location. However, note that the premium processing clock will not start until the premium processing request has been received at the correct center. Note that this could be a very short window to file new cap-exempt H-1B petition(s) requesting premium processing and/or upgrade pending H-1B petitions as USCIS, like in the past few years, may suspend premium processing starting first week of April 2019 to manage heavy caseload of H-1B cap petitions.
As the Lead Counsel in Add Chapter Design LLC v. Nielsen et al, 1:18-cv-06254, I am glad to share that after months of legal battle with the Department of Homeland Security (DHS) and other related parties in the United States District Court for the Northern District of Illinois, United States Citizenship and Immigration Services (USCIS) decided to approve our client’s previously denied L-1A extension petition. Just when we were gearing up to file a Summary Judgement Motion against the Defendants, USCIS decided to reopen and reconsider its previous denial decision and e-mailed us an electronic approval notice. To our surprise, it all happened in just one day—as if lightning struck the slow moving and resistant turtle and transformed it into an agreeable rabbit! Though I am extremely happy to report this success achieved through Federal District Court action, I am disappointed sharing how this was handled by the Defendants, including DHS, represented by the Office of Immigration Litigation (OIL) within the Department of Justice (DOJ). So much of tax payers’ money and some good intellectual resources have been better utilized if the adjudicating officer at USCIS or someone at the OIL would have carefully read either initial petition or Request for Evidence (RFE) response, or even our Federal Court Complaint. It all started in March 2018 when USCIS’ California Service Center denied our client’s L-1A extension application even though we had provided not just adequate information and supporting documentary evidence to meet the preponderance of evidence standard but close enough to cross clear and convincing evidence evidentiary standard threshold. Appalled to infer, through denial decision, that USCIS neither read our initial petition nor the RFE Response, we decided to straight away filed a Federal District Court Complaint seeking review of USCIS’ erroneous decision. We asserted in the complaint that USCIS in its decision failed to properly interpret and apply the relevant statute and disregarded its own binding policy memorandum in reaching an erroneous decision. We sought declaratory judgment by stating that USCIS’ actions were arbitrary, capricious, and not in accordance with law. And, yes, we decided not to file an Appeal to the Administrative Appeals Office (AAO) or submit a Motion to Reopen and/or Reconsider to USCIS because it was not required by Immigration and Nationality Act (INA) in order to demonstrate ‘exhaustion of administrative remedies’ before filing a complaint in the Federal District Court. BRIEF CASE HISTORY Add Chapter Design LLC (Add Chapter USA), based in Chicago, Illinois, is an affiliate company of Add Chapter Dubai, a medium-sized advertising company based in Dubai, UAE. In addition to the beneficiary, Add Chapter USA employed just two (2) employees – a professional and a supervisory level worker—at the time of filing L-1A extension petition. On the other hand, the foreign affiliate company employed ten (10) employees in various professional, supervisory and administrative positions. Along with the extension petition, we provided information and supporting documents demonstrating U.S. company’s various new clients in the United States and explained what role beneficiary will continue to play in the growth and expansion of the newly formed company. Not surprisingly, USCIS issued a lengthy Request for Evidence (RFE) requesting, among various things, detailed statement of duties to be performed by the beneficiary; and how the beneficiary will supervise and control the work of those he will be supervising. The RFE also requested explanation to demonstrate that that there are sufficient persons employed by the U.S. entity to justify the addition of the beneficiary. RFE response included detailed responsibilities to be performed by the beneficiary for each job duty as stated on previously submitted Letter of Support. We also provided detailed tabular chart listing beneficiary’s direct reports in both Dubai and Chicago offices; their job duties; and explained how beneficiary will continue to supervise his direct reports located at both locations. Unfortunately, USCIS denied the extension petition, concluding that the beneficiary will not primarily perform managerial duties; and that the U.S. company failed to show that it employed sufficient personnel to relieve the beneficiary from performing the day-to-day duties required to run the business. OUR WINNING ARGUMENTS As immigration practitioners are aware, the Administrative Appeals Office (“AAO”) in Matter of Z-A-, Inc. Adopted Decision 2016-02 (AAO Apr. 14, 2016) specifically held that when determining whether a beneficiary’s job duties will be primarily managerial, USCIS adjudicating officer“must” consider the“totality of the record and weigh all relevant factors”including: the nature and scope of the petitioner’s business; the petitioner’s organizational structure, staffing levels, and the beneficiary’s position within the petitioner’s organization; the scope of the beneficiary’s authority; the work performed by other staff within the petitioner’s organization, including whether those employees relieve the beneficiary from performing operational and administrative duties; and any other factors that will contribute to understanding a beneficiary’s actual duties and role in the business. Additionally, following the mandate of INA Section 101(a)(44)(C), the AAO in Matter of Z-A-, held that: When staffing levels are considered in determining whether an individual will act as a manager, an officer mustalso take into account relevant evidence in the record concerning thereasonable needs of the“organization as a whole”, including any related entities within the “qualifying organization,” giving consideration to the organization’s overall purpose and stage of development.” [emphasis supplied] Note that USCIS, through a policy memorandum, designated Matter of Z-A-, Inc. as an Adopted Decision. As such, this decision establishes a policy guidance that applies to and binds all USCIS employees. Also, note that USCIS personnel have been specifically directed to “follow the reasoning” in this decision in similar cases. We argued that in denying our client’s L-1A extension petition, USCIS failed to follow its own binding policy guidance by neither considering beneficiary’s detailed job duties and associated responsibilities nor taking into consideration the “totality of the record and weighing all relevant factors” when determining that beneficiary’s job duties are not ‘primarily’ managerial in nature. We also made the Court aware that though the denial focused solely on the staffing level of the U.S. company, USCIS failed to pay close attention to the entire organizational chart and relevant supporting documents that showed that the beneficiary not only will manage U.S. employees in Chicago office but continue to manage supervisory and professional level employees employed by the affiliate company in Dubai, U.A.E. As such, USCIS totally ignored its own binding policy guidance which specifically instructs all USCIS officers to treat “organization as a whole,”- including any related entities within the qualifying organization when adjudicating L-1A petitions. Further, we argued that USCIS did not consider “organization’s overall purpose and stage of development” when determining that staffing level will not relieve beneficiary from primarily performing managerial duties. We also explained and documented that the U.S. company is an extension of the parent affiliate company based in Dubai, U.A.E. as both companies focus on the creative side of advertising, and employees in both offices collaborate on a day-to-day business to serve client in both Middle East and U.S. markets. LESSON LEARNED Until recently inflated preponderance of evidence standard is brought to its original level, providing as much information and supporting documentary evidence in support of any visa petition is crucial. All and any relevant arguments should be made, and all and any relevant supporting document should be provided when submitting initial petition and also when responding to an RFE. Know that strong administrative record is a must when challenging erroneous USCIS decisions in any Federal District Court. Note that USCIS had graciously approved New Company L-1A petition and granted first extension before eventually denying second (2nd) L-1A extension. PM-602-0131 dated April 14, 2016
Though this does not come up very frequently, immigration practitioners should be extremely careful when submitting I-130 spousal petitions involving minors to U.S. Citizenship and Immigration Services (USCIS). On February 15, 2019, USCIS announced that it is publishing a guidance for its officers to consider when adjudicating spousal petitions involving minors. While there are no statutory age requirements to petition for a spouse or be sponsored as a spousal beneficiary, going forward, USCIS will consider whether the age of the beneficiary or petitioner at the time the marriage was celebrated violates the law of the place of celebration and is recognized as valid or violates the public policy of the state where the couple resides or plans to reside. Note that in some U.S. states and in some foreign countries, marriage involving a minor might be permitted under certain circumstances, including where there is parental consent, a judicial order, emancipation of the minor, or pregnancy of the minor. The updated guidance stresses to adjudicators that marriages involving a minor warrant special attention. USCIS is guiding its officers to review the following when adjudicating I-130 spousal petitions involving minors: The marriage was lawful in the place it was celebrated; If the couple resides outside the place of celebration, the marriage is recognized as valid in the U.S. state where the couple currently resides or will presumably reside and does not violate the state of residence’s public policy, and; The marriage is bona fide, and the minor(s) provided full, free, and informed consent to enter into the marriage. Note that prior to publishing this guidance and required Adjudicator’s Field Manual (AFM) update, USCIS created a flagging system that sends an alert in the electronic system at the time of filing if a minor spouse or fiancé is detected. After the initial flag, the petition is sent to a special unit that verifies that the age and relationship listed are correct before the petition is accepted. If the age or classification on the petition is incorrect, the petition will be returned to the petitioner for correction.
2019 H-1B CAP FILING UPDATE: USCIS SUSPENDS ELECTRONIC REGISTRATION REQUIREMENT BUT WILL IMPLEMENT “REVERSE” PETITION SELECTION ORDER
by Rabindra Singh
Today, January 30, 2019, Department of Homeland Security (DHS) posted a final rule amending regulations governing H-1B cap-subject petitions, including those that may be eligible for the advanced degree exemption. The final rule reverses the order by which U.S. Citizenship and Immigration Services (USCIS) selects H-1B petitions under the H-1B regular cap and the advanced degree exemption. Additionally, it introduces an electronic registration requirement for petitioners seeking to file H-1B cap-subject petitions. The rule will be published in the Federal Register on January 31, and go into effect on April 1, 2019. Note that though USCIS has decided to suspend the electronic registration requirement component of the new rule for the upcoming cap season, the reverse petition selection order will apply to all H-1B cap petitions submitted on or after April 1st, 2019. Under the current H-1B selection process, if the regular cap and advanced degree exemption are reached during the first five (5) business days, USCIS randomly selects sufficient H-1B petitions to reach the H-1B 20,000 advanced degree exemption first. Then, USCIS randomly selects sufficient H-1B petitions from the remaining pool of beneficiaries, including those not selected in the advanced degree exemption, to reach the H-1B 65,000 regular cap limit. This final rule reverses the selection process so that USCIS will randomly select petitions for the H-1B regular cap first, including petitions eligible for the H-1B advanced degree exemption. Then, USCIS will randomly select registrations for the H-1B advanced degree exemption. USCIS believes that changing the petition selection order will likely increase the number of beneficiaries with a master’s or higher degree from a U.S. institution of higher education to be selected for further processing under the H-1B allocations. Specifically, USCIS estimates that the change will result in an increase of up to 16% (or 5,340 workers) in the number of selected petitions for H-1B beneficiaries with a master’s degree or higher from a U.S. institution of higher education. Interesting enough, while addressing one of the comments, DHS stated (without citing reliable data) the following: ...While the reversal of the selection order does not guaranteethat the selected registrant will be the most skilled or highest paid beneficiary, it increases the probability that a beneficiary with a U.S. master’s degree will be selected. And if a U.S. master’s degree beneficiary typically earns more in wages, that beneficiary “may”earn a higher wage than a non-selected beneficiary. [emphasis supplied] The above explanation does not fit well and addresses the Buy American and Hire American Executive Order, which directed the DHS and other agencies to “suggest reforms to help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries.” Nonetheless, in closing, it is important to remind that USCIS will proceed with implementing reverse petition selection order for the FY 2020 cap season (beginning on April 1, 2019), notwithstanding the delayed implementation of the H-1B electronic registration requirement.
On September 10, 2018, the Department of State released the first Visa Bulletin for the FY2019. Fast forward on September 14, 2018, U.S. Citizenship and Immigration Services (USCIS) announced that it will utilize the “Filing Date” Chart in the Visa Bulletin for accepting employment-based preference Adjustment of Status applications for the month of October. This is positive news for everyone, but not so for Indian Citizens who are in the EB-2 preference category. Filing Date Chart shows that EB-3 India priority date will surge ahead of EB-2 preference category. Per the Filing Date Chart, India EB-3 stands at October 1, 2009, while India EB-2 trails at May 22, 2009. Thus, India EB-3 priority date will surge ahead of EB-2 by more than 4 months. India is following the example of its neighbor, China. For a long-time, and still is the case, China EB-3 priority date remained ahead of EB-2 preference category in the employment-based category. Though the "Final Action Date" Chart shows that India EB-2 is ahead of EB-3, the difference is minimal and if the trend continues like this then EB-2 India will soon start trailing on the Final Action Date Chart too. The million dollar question to ask is: Is this the time for Indian Citizens to downgrade from EB-2 to EB-3 to make use of the fast moving priority date in EB-3 category so that years of checking visa bulletin could be avoided in the near future by obtaining lawful permanent residency in the United States? Wait to make the downgrade move until Charles Oppenheim, Chief of the Visa Control and Reporting Division, U.S. Department of State, shares projection on the India priority date movement in the employment-based categories for the rest of the fiscal year.
Giving shape and showing loyalty to President Trump’s Buy American, Hire American initiative, the newly appointed U.S. Citizenship and Immigration Services (USCIS) Director L. Francis Cissna implemented a new Policy Memorandum (Policy Memo) which specifically instructs all USCIS officers not to give deference to any previously approved nonimmigrant visa petition even if the petitioner, beneficiary and underlying facts remain unchanged from a previously approved petition. Per new Policy Memo, USCIS is instructing its officers to apply the same level of scrutiny to both initial petitions and extension requests for all nonimmigrant visa petitions filed using Form I-129, Petition for a Nonimmigrnat Worker. The new Policy Memo basically formalized the non-deference approach previously adopted and applied only to certain nonimmigrant visa extension petitions (such as L-1Bs), and uniformly applied it to other nonimmigrant visa extension petitions using Form I-129. Business immigration practitioners could vividly recall that USCIS adopted and started applying the informal non-deference policy back in 2008. The undeclared reasoning back then was to protect jobs for American workers during the economic meltdown caused by the housing market crisis. Though the push-back from various multinational corporations ultimately forced the Obama Administration to roll out the “L-1B Adjudications Policy” in August 2015 which specifically mentioned applying deference when adjudicating L-1B extension petitions, it was too late by then and nothing much really changed. The Trump Administration’s new Policy Memo supersedes and rescinds the 2004 Yates Memo and Section VII of the August 2015 Policy Memorandum rolled out by then Obama Administration. The new Policy Memo is binding on all USCIS employees and is effective immediately. Concerned that 2004 Yates Memo imposed burden on the USCIS officers rather on the Petitioner and USCIS officers felt constrained in requesting additional documentation in the course of adjudicating an extension petition, USCIS’ new Director decided to promulgate the new Policy Memo. Not sure about the USCIS officers but certainly employers and experienced business immigration practitioners could comment more on who felt “burdened” and “constrained” after receiving long-form Request for Evidence (RFE), which often ran up to 7-8 pages, from USCIS officers adjudicating L-1B extension petitions. Rigorous application of no-deference approach by USCIS officers adjudicating L-1B extension petitions, which started in 2008, eventually forced some America corporations to completely stop using the L-1B visa program. So, does the new Policy Memo wants to relieve USCIS officers of the burden and constraint imposed by the 2004 Yates Memo or does it aims to implement Trump Administration’s ‘Buy American, Hire American’ policy? I believe, like Director Cisna, everyone knows the answer. Whatever could have been Director Cisna’s motivational factor in implementing the new Policy Memo, the truth, bad or worse, right now is that USCIS has implemented a non-deference policy when adjudicating any nonimmigrant visa extension petition with immediate effect. What does that mean for employers and immigration practitioners? What all checks and balances, and vetting would now be required before submitting extension petitions. Because the universe of nonimmigrant visa petition is quite big, this article primarily focus on few practice pointers which should be taken into consideration when filing an H-1B extension petition post implementation of the new Policy Memo by USCIS. O*NET Standard Occupational Classification (SOC) Code Selection: First and foremost, the SOC code should be carefully selected. Among impacting other things such as skills, educational requirement, and work activities; improper SOC code selection could impact the prevailing wage selection for the proffered position. Since USCIS has in the recent past shown profound love towards the Department of Labor (DOL) Prevailing Wage Determination Policy Guidance (Wage Guidance Policy) by selectively quoting from it when challenging Level I salary selection by the employers who had submitted H-1B cap petitions for the FY 2018, it would be highly beneficial and prudent to familiarize oneself with what the Wage Guidance Policy has to say regarding O*NET SOC code selection and how it impacts prevailing wage selection. The Wage Guidance Policy, in pertinent part, states that: "It is important to remember that wage levels are determined only after selecting the most relevant O*NET-SOC occupational code classification. The selection of the O*NET-SOC code should not be based solely on the title of the employer’s job offer. The NPWHC should consider the particulars of the employers's job offer and compare the full description to the tasks, knowledge, , and work activities generally associated with an O*NET-SOC occupation to insure the most relevant occupational code has been selected." As such, more than ever, employer and practitioners should pay careful attention to the proper SOC code selection when submitting a Labor Condition Application (LCA) to the DOL for approval. Remember that the approval of previous H-1B petition would no longer guarantee approval of an H-1B extension even if the petitioner, beneficiary and underlying facts remain unchanged. For instance, the correct SOC code to use for a software developer position is 15-1132. Even if the employer/practitioner got lucky by selecting the SOC Code of 15-1131 (applicable to Computer Programmers) on a previously approved H-1B petition for a Software Developer position, caution must be exercised by selecting 15-1132 (applicable to Software Developers, Applications) when submitting an H-1B extension petition. Education and/or Experience Evaluation: Previously submitted educational and/or experience evaluation may create issue if not re-examined and submitted again with an H-1B extension petition. Now is the time to take a closer look at the educational and/or experience evaluation, specifically in cases where the approved H-1B petition mentioned a U.S. equivalent education that was either not in the same or in a closely-related field as stated by the DOL’s Occupational Outlook Handbook (OOH) for that particular occupational classification. Consider the case of an approved H-1B petition for a software developer position wherein the petitioner mentioned that the beneficiary holds an education equivalent to a U.S. Bachelor of Science Degree in Electrical Engineering. Note that the OOH states that: Software developers usually have a bachelor’s degree, typically in computer science, software engineering, or a related field. As such, assuming that the beneficiary has gained few years of work experience in the computer science field in the United States after being admitted in an H-1B nonimmigrant status, it would be a good idea to consider submitting an educational and experience evaluation with the H-1B extension petition to avoid USCIS raising any objection that the Beneficiary does not hold an education (or its equivalent) in the specific or a closely related field as mentioned by the OOH. Further, in cases where the beneficiary qualified for the specialty occupation position based solely on experience evaluation, one must look carefully into whether or not the previously submitted experience evaluation met all regulatory requirements. Especially, whether or not the previously submitted experience evaluation was provided by an official "formally" involved with the college or university’s official program for granting credit based on training and/or experience. Compare Employer’s Job Requirement with the O*NET Information when Determining Wage Level: In the new era of no-deference, employers and practitioners should make it a routine practice to compare proffered position requirements with the O*NET information for the selected occupational category. The DOL’s Wage Guidance Policy specifically instructs National Prevailing Wage and Helpdesk Center (NPWHC) to follow the step-by-step process in determining the appropriate wage level by taking into account the information available on O*NET for that particular occupation. Particularly, in the Section “Process for Determining Wage Level”, the Wage Guidance Policy states that: The NPWHC shall use O*NET information to identify the tasks, work activities, knowledge, and skills generally required for performance in an occupation. A “comparison between the particulars of the employer’s job offer to the requirement for similar (O*NET) occupations shall be used” to determine the appropriate wage level…Information contained in the O*NET Job Zones provides guidance in determining whether the job offer is for an “entry level, qualified, experienced, or fully competent” employee for making the determination of wage level. As such, when selecting a wage level, employers and practitioners should endeavor to compare and analyze how employer’s position requirements—especially the tasks, work activities, skills and knowledge—compare to O*NET information available for the selected occupational classification. Additionally, the entire Wage Guidance Policy should be considered when selecting a wage level. Note that the 36-page Wage Guidance Policy provides both a qualitative description of the four OES wage levels and a quantitative five-step method for analyzing job requirements and determining which level should apply. Going forward, employers and practitioners should analyze and, if required, be ready to share with USCIS both the quantitative five-step process and the qualitative analysis utilized in determining the wage level for the proffered position. Conclusion. Since USCIS would now start targeting any flaw in the previously approved petition to deny H-1B extension petitions, extreme caution and vetting would be required on the part of employers and immigration practitioners. Gone are the days when it was considered easy and routine to prepare an H-1B extension petition. Every aspect of the H-1B extension petition would now need to be carefully analyzed, assessed and re-examined before submission. Not doing so could have disastrous consequences on H-1B Beneficiaries who have been waiting for years for the Priority Date to become current to adjust status that of a Lawful Permanent Resident in the United States. It would also adversely impact the H-1B employers who have invested so much in such H-1B employees and desperately needs to retain them in order to remain competitive in the highly competitive global economy.  April 23, 2004 Memorandum titled “The Significance of a Prior CIS Approval of a Nonimmigrant Petition in the Context of a Subsequent Determination Regarding Eligibility for Extension of Petition Validity” from William Yates, USCIS Associate Director for Operations.  to obtain and review a separate record of proceeding to assess whether the underlying facts in the current proceeding have, in fact, remained the same.  filed using Form I-129  revised November 2009  Applications  Section II.B.2.  including Appendix A to G.  as described in section II.B. of the DOL’s Wage Guidance Policy
USCIS RESUMES PREMIUM PROCESSING FOR ALL FISCAL YEAR (FY) 2018 CAP-SUBJECT H-1B VISA PETITIONS.
by Rabindra Singh
Effective today, September 18, 2017, U.S. Citizenship and Immigration Services (USCIS) resumed premium processing for all H-1B visa petitions subject to the Fiscal Year (FY) 2018 cap. In addition to the regular H-1B Cap of 65,000 visas, USCIS has resumed premium processing for the annual 20,000 additional petitions that are set aside to hire workers with a U.S. master’s degree or higher educational degree. In the past, USCIS resumed premium processing of H-1B petitions filed on behalf of physicians under the Conrad 30 waiver program, as well as interested government agency waivers, and for certain H-1B petitions that are not subject to the cap. Premium processing remains temporarily suspended for all other H-1B petitions, such as extensions of stay. However, remaining petitioners may submit a request to expedite their application if they meet the specific criteria. USCIS plans to resume premium processing for all other remaining H‑1B petitions not subject to the FY 2018 cap by taking into consideration its workload.  Submitted by: 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.  Severe financial loss to company or person ; Emergency situation; Humanitarian reasons; Nonprofit organization whose request is in furtherance of the cultural and social interests of the United States; Department of Defense or national interest situation; USCIS error; or Compelling interest of USCIS.
USCIS to Require In-Person Interview for Employment-based Adjustment of Status Applications and Refugee/Asylee Relative Petitions.
by Rabindra Singh
Effective October 1, 2017, USCIS will begin to phase-in interviews for the following: • Adjustment of status applications based on employment (Form I-485, Application to Register Permanent Residence or Adjust Status). • Refugee/asylee relative petitions (Form I-730, Refugee/Asylee Relative Petition) for beneficiaries who are in the United States and are petitioning to join a principal asylee/refugee applicant. USCIS believes that conducting in-person interviews will provide officers with the opportunity to verify the information provided in an individual’s application, to discover new information that may be relevant to the adjudication process, and to determine the credibility of the individual seeking permanent residence in the United States. USCIS will meet the additional interview requirement through enhancements in training and technology as well as transitions in some aspects of case management. Does that mean that we are looking at another filing fee hike in the near future as USCIS would need to bring in additional resources, not to mention additional adjudicating officers, to interview the new pool of applicants/beneficiaries? Note that USCIS is funded primarily by immigration and naturalization benefit fees charged to applicants and petitioners. See USCIS’ Press Release here: https://www.uscis.gov/news/news-releases/uscis-to-expand-in-person-interview-requirements-for-certain-permanent-residency-applicants
Fiscal Year 2018 Visa Bulletin progress and projections provided by Charlie Oppenheim, Chief of the Visa Control and Reporting Division, U.S. Department of State: EB-1 China and EB-1 India: Based on current information, these categories will likely return to “Current” in October 2017. A final action date will definitely be imposed again for EB-1 China and EB-1 India at some point during the summer of 2018. EB-2 Worldwide: The final action date for EB-2 Worldwide, advances nine months in September, from April 1, 2015, to January 1, 2016. This category will become current again on October 1, 2017, and it should remain current for the foreseeable future. EB-2 India: Slow movement of a few weeks at a time starting in October 2017. It is hoped that the final action date for EB-2 India will be advanced to a date in December 2008 at some point between January and April 2018, depending on the level of EB-3 upgrade demand. The final action date for EB-2 India could advance to a date in 2009 at some point during the second half of FY 2018. EB-2 and EB-3 China: Full recovery of EB-3 China is expected in October 2017, putting it once again ahead of the final action date for EB-2 China, creating conditions for EB-3 downgrades. EB-2 China will advance more swiftly than EB-2 India in the coming fiscal year, at a pace of three to six weeks per month. EB-3 Worldwide: The EB-3 Worldwide final action date, which became current in August, is likely to remain current in October, absent significant demand materializing within the next few weeks. Demand for EB-3 Worldwide will have a significant impact on the ability of the EB-3 India final action date to advance significantly at the end of FY 2018, based on the availability of "otherwise unused" numbers. EB-3 India: EB-3 India advances three months in September to October 15, 2006, consistent with Charlie’s predictions. This category is expected to continue to advance at a pace of several weeks at a time as we enter the new fiscal year. EB-3 Philippines: The final action date for EB-3 Philippines advances another five months to November 1, 2015, in September. It is expected that demand in this category may materialize abruptly, but Charlie does not expect that to occur until after the first of the year. EB-5 China: The final action date for EB-5 China holds at June 15, 2014, in September. This category will sunset at the end of September if the program is not reauthorized by Congress. As in the past, the October Visa Bulletin will likely address the final action date that will apply to this category if it is reauthorized. FB-1 and FB-4: As noted in the Visa Bulletin, high demand necessitated a temporary retrogression of the final action dates in the FB-1 and FB-4 Worldwide, China, El Salvador, Guatemala, India and Honduras categories for September. A full recovery of the final action dates for these categories will occur in October. Special Immigrants: In September, the final action date for EB-4 India, Mexico, and El Salvador, Guatemala, and Honduras advances more than one month to October 22, 2015. EB-4 India will become current in October and will remain so until spring or summer 2018. Additionally, in October, it is possible that EB-4 Mexico will have a later final action date than the one imposed for EB-4 El Salvador, Guatemala and Honduras.
Today, President Donald J. Trump introduced The Reforming American Immigration for a Strong Economy Act (RAISE Act). President Trump appeared with a pair of conservative Republican Senators [Sens. Tom Cotton (Ark.) and David Perdue (Ga.)] at the White House to unveil legislation aimed at slashing legal immigration levels over a decade. RAISE Act aims to address our current outdated immigration system which fails to meet the diverse needs of our economy. Specifically, the RAISE Act would: Establish a Skills-Based Points System. The RAISE Act would replace the current permanent employment-visa system with a skills-based points system, akin to the systems used by Canada and Australia. The system would prioritize those immigrants who are best positioned to succeed in the United States and expand the economy. Applicants earn points based on education, English-language ability, high-paying job offers, age, record of extraordinary achievement, and entrepreneurial initiative. Prioritize Immediate Family Households. The RAISE Act would retain immigration preferences for the spouses and minor children of U.S. citizens and legal permanent residents while eliminating preferences for certain categories of extended and adult family members. Eliminate the Outdated Diversity Visa Lottery. The Diversity Lottery is plagued with fraud, advances no economic or humanitarian interest, and does not even promote diversity. The RAISE Act would eliminate the 50,000 visas arbitrarily allocated to this lottery. Place a Responsible Limit on Permanent Residency for Refugees. The RAISE Act would limit refugees offered permanent residency to 50,000 per year, in line with a 13-year average.
Effective today, July 24, 2017, U.S. Citizenship and Immigration Services (USCIS) will resume premium processing for certain cap-exempt H-1B petitions. Premium processing will resume for petitions that may be exempt from the cap if the H-1B 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 will also resume for petitions that may also be exempt if the beneficiary will be employed at a qualifying cap-exempt institution, organization or entity. On June 26, 2017, USCIS had resumed premium processing for H-1B petitions filed on behalf of physicians under the Conrad 30 waiver program as well as interested government agency waivers. Though no set date has been specified, USCIS notified today that it plans to resume premium processing of other H-1B petitions as workloads permit. USCIS will make additional announcements with specific details related as to when it will begin accepting premium processing for those petitions. Until then, premium processing remains temporarily suspended for all other H-1B petitions.
FEDERAL COURT COMPLAINT CHALLENGING USCIS’ INTERPRETATION OF REGULATIONS YIELDS POSITIVE RESULTS.
by Rabindra Singh
Received approvals on long-pending Motion To Reopen and Reconsider; and Nunc Pro Tunc B-2 Extension Application (to cover the gap of more than 30 days between previously-accorded B-2 nonimmigrant status and “deferred” program start date) submitted in connection with a previously denied B-2 to F-1 Change of Status Application. Our law firm challenged USCIS’ erroneous interpretation of the regulation by submitting a Federal Court Complaint in the United States District Court for the Northern District of Illinois which resulted in USCIS approving both Motion to Reopen and Reconsider and Nunc Pro Tunc B-2 Extension Application. I had previously written an Article (published by Law360) explaining why USCIS’ interpretation of the regulation is erroneous and which if challenged in the Federal Court of law could produce positive results.
H-1B MASTER’S CAP: DEGREE-CONFERRING INSTITUTION MUST BE ACCREDITED OR PRE-ACCREDITED ‘AT THE TIME’ IT AWARDS BENEFICIARY’S MASTER’S DEGREE.
by Rabindra Singh
Designating a previously issued decision, Matter of A-T- Inc, by the Administrative Appeals Office (AAO) as an Adopted Decision, United States Citizenship and Immigration Services (USCIS), through a policy memorandum, clarified 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. So, how this policy memorandum will impact practitioners, employers intending to hire foreign nationals who hold U.S. Master’s or higher degree using the H-1B visa program, and F-1 visa holders, particularly those who are engaged in Optional Practical Training. Up until now, before determining the H-1B petition getting considered, accepted, and approved under the Master’s Cap, practitioners and prospective H-1B employers used to closely focus their analysis only on whether or not the Master’s degree conferring U.S. institution qualifies as a United States institution of higher education. Going forward, they would have to engage in additional fact finding of whether or not the United States institution which conferred Master’s degree to the Beneficiary actually qualified as a United States institution of higher education at the time it awarded the degree. To refresh memory, the H-1B Visa Reform Act of 2004 amended section 214(g)(5) of the Immigration and Nationality Act (INA) by adding an additional exemption to the H-1B Cap. The new section 214(g)(5)(C) provided that foreign nationals who earned a Master’s or higher degree from a United States institution of higher education (as defined in section 101(a) of the Higher Education Act of 1965 (20 U.S.C. 1001(a)) are exempt from the H-1B visa Cap (up to a maximum of 20,000 per year). Once the 20,000 Cap is reached, any employer seeking to employ a foreign national who possesses a Master’s or higher degree gets subjected to the regular annual H-1B Bachelor’s degree Cap of 65,000 unless the foreign national is eligible for another statutory or regulatory exemption. It is pertinent to note and highlight that H-1B petitions indicating that they are exempt from the annual numerical limitation of 65,000 (because the Beneficiary holds a Master’s or a higher degree from a United States institution of higher) but are later determined by USCIS, after the final receipt date, to be subject to the numerical limit gets denied. Such unqualified Master’s Cap petitions do not get considered under the regular H-1B Bachelor’s Cap. See 8 C.F.R. § 214.2(h)(8)(ii)(B) In the Matter of A-T, determining that the degree-conferring institution, International Technological University was not accredited or pre-accredited at the time it awarded the Beneficiary Master’s degree; USCIS’ California Service Center denied the H-1B petition seeking Master’s Cap exemption. On appeal, the Petitioner contended that the INA does not require that the degree be from a United States institution of higher education at the time the degree is awarded. Rather, the Petitioner asserted that a Beneficiary may qualify for the Master’s Cap if the Beneficiary earned a degree from an institution that qualified as an institution of higher education at the time of adjudication. Further, the Petitioner argued that even if the Beneficiary would not have qualified for Master’s Cap, in the alternative, USCIS should have adjudicated the petition under the general H-1B Bachelor’s degree Cap. Disagreeing with Petitioner’s arguments and stating that the Petitioner’s proffered interpretation will introduce uncertainty for graduates seeking immigration benefits over time, the AAO dismissed the appeal. As stated above, to qualify for the H-1B Master's Cap exemption, prospective H-1B Beneficiary must have earned a Master's or higher degree from a “U.S. institution of higher education" as defined by Section 101(a) of the Higher Education Act of 1965. See INA Section 214(g)(5)(C). Among other requirements, as laid down by the Section 101(a) of the Higher Education Act of 1965, an “institution of higher education” is defined, as a public or nonprofit educational institution that: is accredited by a nationally recognized accrediting agency or association, or if not so accredited, is an institution that has been granted pre-accreditation status by such an agency or association that has been recognized by the [U.S. Secretary of Education] for the granting of pre-accreditation status, and the Secretary has determined that there is satisfactory assurance that the institution will meet the accreditation standards of such an agency or association within a reasonable time. The statute, thus, only requires that the graduate must have “earned” a degree “from a United States institution of higher education”; and, that the conferring institution (public or nonprofit educational institution) should be either “accredited” or “granted a pre-accreditation status.” As noted by the AAO, the statute, however, does not expressly state whether the institution must have been accredited or pre-accredited at the time the degree was earned or at the time when a relevant immigration benefit gets adjudicated. Settling this issue, the AAO in Matter of A-T held that the educational institution’s qualifications must be established at the time the degree is earned by the Beneficiary. Supporting its interpretation of the statute, the AAO stated that requiring beneficiaries to earn their degrees from institutions that, at a minimum, are pre-accredited at the time the degree is earned helps ensure the quality of education necessary to merit a Master’s Cap exemption. Assessing the institution’s qualifications at some later time – such as when an immigration benefit is requested for one of the institution’s graduates – does not advance those quality considerations. Disagreeing with Petitioner’s proffered interpretation – requiring pre-accreditation or accreditation status at the time of immigration benefit adjudication –, the AAO stated that it could lead to imprudent and unintended results. Specifically, the AAO noted that: “If, as the Petitioner asserts, the determination is based on whether the institution qualified as an institution of higher education at the time of the immigration benefit adjudication, then a Beneficiary could qualify for the Master’s Cap exemption based on (pre-)accreditation that happens long after the degree was earned which would not necessarily reflect the quality of the beneficiary’s education. Conversely, a beneficiary who earned a qualifying degree from an institution of higher education, and who would have qualified for the Master’s Cap exemption, could subsequently become ineligible for the exemption if the institution lost its accreditation, in some cases long after the beneficiary earned a qualifying degree. [emphasis supplied] Further, addressing Petitioner’s second contention – even if the Beneficiary cannot qualify for a Master’s Cap exemption, USCIS should also examine his eligibility under the general H-1B Cap – the AAO stated that the relevant regulation generally does not permit H-1B Petitioners to claim eligibility under alternative grounds. In particular, once again disagreeing with the Petitioner’s argument, and quoting the pertinent language of the regulation contained at 8 C.F.R. § 214.2(h)(8)(ii)(B), the AAO, in essence stated that unqualified Master’s Cap petitions do not get considered under regular H-1B Cap provided that USCIS “determines” that the petition is not qualified for the Master’s Cap after “final receipt date.” The “final receipt date” is the date when USCIS notifies the public that it has received sufficient numbers of petitions to reach the H-1B Cap. The date a Beneficiary’s Cap exemption is “determined” is the date on which USCIS articulates its adjudication in a decision. Interestingly enough, 8 C.F.R. § 214.2(h)(8)(ii)(B) states that USCIS will not only reject the unqualified Master’s Cap petition but it will also not return or refund the filing fee, which in some cases could exceed $5,000.00 Based on the foregoing, because the AAO has interpreted the statute to require that the institution’s qualifications must be established at the time the degree is earned, the date the Beneficiary earned his/her Master’s or higher degree is critical. If the educational institution conferring Master’s or higher degree was not accredited or pre-accredited when the Beneficiary earned his/her Master’s degree, the Beneficiary will not qualify for H-1B Master’s Cap. Petitioner’s argument that even if the Beneficiary did not qualify for the Master’s Cap, USCIS should examine eligibility under the general H-1B Cap, would very likely fail. Thus, moving forward, it should be imperative for the practitioners and prospective H-1B employers to double check not only on the fact the Beneficiary’s Master’s degree conferring U.S. institution qualifies as a United States institution of higher education but also that the educational institution qualified as a United States institution of higher education at the time it awarded degree to the Beneficiary. Failure to take such precautionary steps may result in Master’s Cap H-1B petition getting denied and not being considered under the regular H-1B Cap. Additionally, the prospective H-1B employer risks losing filing fee for the alleged Master’s Cap petition.  Originally issued on December 31, 2013, as a non-precedent decision.  Matter of A-T- Inc, Adopted Decision 2017-04 (AAO May 23, 2017).  based in California.  See 20 U.S.C. § 1001(a) (2012) (originally enacted as the Higher Education Act of 1965, Pub. L. No. 89-329, 79 Stat. 1219) (“Higher Education Act”) (emphasis added).  See U.S. Dep’t of Education, FAQS About Accreditation, https://ope.ed.gov/accreditation/FAQAccr.aspx (last visited May 24, 2017) (stating that the “goal of accreditation is to ensure that education provided by institutions of higher education meets acceptable levels of quality”).  See 8 C.F.R. §§ 103.2(b)(19), 103.3(a)(1)(i), and 103.8(a).
All foreign nationals are required to keep the United States Citizenship and Immigration Services (USCIS) informed of their current address. This is particularly important when foreign national submits an application/petition on his/her own or employer submits an application/petition on foreign national’s behalf under the Immigration and Nationality Act (INA), and expects a notification of a decision on that application, petition, or request. Why It Is Imperative To Comply? A willful failure to give written notice to the USCIS of a change of address within 10 days of moving to the new address is a misdemeanor crime. If convicted, the foreign national (or the parent or legal guardian of a foreign national under 14 years of age who is required to give notice) can be fined up to $200 or imprisoned up to 30 days, or both. The foreign national may also be subject to removal from the United States. See INA Section 266(b). Compliance with the requirement to notify the USCIS of any address change is also a condition of foreign national’s stay in the United States. Failure to comply could also jeopardize foreign national’s ability to obtain a future visa or other immigration benefit.
B-2 TO F-1 DENIALS: WHY CIS SHOULD CONSIDER REVERTING TO ITS PRIOR REGULATORY INTERPRETATION?
by Rabindra Singh
For the past few months, United States Citizenship and Immigration Services (CIS) has been denying certain B-2 to F-1 Change of Status (COS) applications. CIS, particularly the California Service Center (CSC), has been denying such COS applications submitted by applicants when they were in valid B-2 nonimmigrant status and when the school program start date was no more than 30 days post expiry of B-2 nonimmigrant status. CIS has been denying such applications by pointing a gap of more than 30 days between the B-2 nonimmigrant status expiry date and the “deferred” program start date reflected in the Student and Exchange Visitor Information System (SEVIS) record. This is a major and disturbing shift from how CIS has in the past interpreted and applied regulations when adjudicating such applications. What is more disturbing is that CIS changed its’ regulatory interpretation without providing any formal or informal guidance, and has not been supporting its new interpretation through any precedent decision, interpretative rule or other generally applicable agency documents. No one knows what triggered CIS to change its’ interpretations of the regulations but the million dollar questions are: (1) whether or not CIS is interpreting the regulations correctly; and (2) why it should consider reverting to its prior interpretation? Is CIS Interpreting The Regulations Correctly? CIS’ interpretation of the regulation that there should not be a gap of more than 30 days between expiry of applicant’s B-2 nonimmigrant status and the “deferred” program start date is erroneous because neither Section 248 of the Immigration and Nationality Act (INA) nor pertinent regulations contained at 8 C.F.R. Sections 248.1(b) and 214.2(f)(5)(i) state or imply that CIS may not consider COS applications from applicants whose prior status expired more than 30 days prior to “deferred” program start date. CIS has been basing its decisions on the interaction of the interpretation of regulations contained at 8 C.F.R. Sections 248.1(b) and 214.2(f)(5)(i). Before taking a microscopic look at the language of the regulations, it is important to review the underlying statute, INA Section 248. INA Section 248 specifically states, in pertinent part that: “…The Secretary of Homeland Security may, under such conditions as he may prescribe, authorize a change from any nonimmigrant classification to any other nonimmigrant classification in the case of any alien lawfully admitted to the United States as a nonimmigrant who is “continuing to maintain” that status and who is not inadmissible…[emphasis supplied] The underlying statute, INA Section 248, is ambiguous. Though the statute states that the CIS may not grant a COS to someone who has “failed to maintain” his or her nonimmigrant status, it does not define what it means to “maintain” status. Does it mean that the nonimmigrant applicants must continue to maintain status until the submission of a COS application, or does it mean means that the applicants must continue to maintain status until CIS grants new nonimmigrant status. Because the statute is ambiguous, let’s take a look at the implementing regulation contained at 8 C.F.R. Section 248.1(b). 8 C.F.R. Section 248.1(b) states, in relevant part: “…a change of status may not be approved for an alien who failed to maintain the previously accorded status or whose status expired before the application or petition was filed, except that failure to file before the period of previously authorized status expired may be excused in the discretion of USCIS… [emphasis supplied] Though the implementing regulation, 8 C.F.R. Section 248.1(b), adopts the ambiguous language, it also includes other language that clarifies the ambiguity in a way that favors the position of B-2 to F-1 COS applicants. Thus, under the plain language of the regulation, CIS may approve the COS application if the applicant submitted it before the expiry of his/her nonimmigrant status. Additionally, the regulation goes a step further by including a provision that an applicant may be eligible for a COS even if she or he failed to file before the previously authorized status expired. The ultimate decision of whether to excuse the applicant’s lapse lies within “the discretion” of the CIS. The implementing regulation fails to address the specific situation which CIS has been quoting in the denials— “…that the Applicant was in a valid B-2 nonimmigrant status at the time of submission but later ‘allowed it to expire’ while application was pending CIS adjudication.” CIS, thus, is basing denials on the gap of more than 30 days between the B-2 status expiry date and the deferred program start date. Without blaming its own delays in adjudicating such applications, CIS is pointing fingers towards such applicants who had submitted the applications on time but due to extended delays by CIS in adjudicating such applications the Designated School Officials (DSOs) were forced to defer the initial program start date. The question worth exploring is why CIS is focusing on the deferred program start date in place of the initial/original program start date as stated on the Form I-20 when adjudicating such COS applications. Even assuming that CIS’ interpretation is correct, if the failure to file before expiration of status can be excused within the discretion of the service, then, it is only reasonable to conclude that filing within status (and later unintentionally falling out of status) must be excusable. It is not logical to conceive why the regulation would intend to provide a mechanism for excusing the former, but not the latter. The CIS’ interpretation would therefore result in an absurd and inexplicable inconsistency within the statute, and such interpretations are disfavored. See United States v. Granderson, 511 U.S. 39, 56. 114 S. Ct. 1259, 127 L. Ed. 2d 611 (1994). To add, CIS has been basing denials on the interaction of Section 248.1(b) with Section 214.2(f)(5)(i) contained in 8 C.F.R., and focusing much of its analysis on Section 214.2(f)(5)(i). However, CIS has failed to clearly indicate and explain how Section 214.2(f)(5)(i) applies to the interpretation of Section 248.1(b). In pertinent part, 8 C.F.R. Section 214.2(f)(5)(i) states,: “…An F-1 student may be admitted for a period up to 30 days before the indicated report date or program start date listed on Form I-20…[emphasis supplied] Section 214.2(f)(5)(i) clarifies that the agency may only permit an applicant’s F-1 status to become effective as early as 30 days prior to his/her program start date listed on Form I-20, and no earlier. Nowhere does it specifically state or imply that the agency may not consider COS applicants whose prior status expired more than 30 days prior to the “deferred” program start date. The regulation simply does not address the dispositive issue, which instead turns on the proper interpretation of Section 248.1(b): whether the agency has discretion to consider applicants who file on time, but subsequently (and inadvertently) lose their prior status because of the delay by CIS in adjudicating such timely submitted COS applications? Further, as stated above, except through the Denials, CIS has failed to support its newfound interpretation of the regulation contained at 8 C.F.R. Section 214.2(f)(5) by any precedent decision, any other interpretative rule or other generally applicable agency documents such as internal Policy Memorandum, Q&A or Guidance. CIS, in its Denials, is quoting above-stated relevant portion of Section 214.2(f)(5)(i) and is trying to draw an analogy by stating: “Similarly, USCIS may grant a request for a change of nonimmigrant status to that of an F-1 academic student effective 30 days before the program start date listed in the SEVIS records…” Even assuming that CIS is drawing proper analogy, the next question worth pondering is: Which program start date listed in SEVIS records?—the “original” or “initial” program start date OR the “deferred” program start date? It would be improper and illogical for the adjudicators at CIS only to rely on the “deferred” program start date as listed in the SEVIS records when adjudicating long-pending COS applications when CIS delays required the DSOs to defer the program start date, sometime multiple times. Rather than relying on the “deferred” program start date, adjudicators should take into consideration the “original” or the “initial” program start date by carefully looking into the available and accessible complete ‘SEVIS Event History’. If for any reason the adjudicators do not have access to the complete SEVIS history, a Request for Evidence (RFE) should be sent to the applicants (or applicant’s legal representative, if any) so that complete SEVIS Event History can be provided to CIS. CIS’ changed reliance only on the “deferred” program start to calculate the gap between the previously maintained nonimmigrant status and the program start date is erroneous and improper, and could very well be challenged in Federal Courts. Why CIS Should Consider Reverting To Its Prior Interpretation? Though INA Section 242(a)(2)(B)(ii) specifically divests Courts of the jurisdiction to review the discretionary determinations of the CIS, it does not bar them from reviewing any non-discretionary dimensions of a decision of the CIS. There is a distinction between eligibility for discretionary relief and the favorable exercise of discretion. Pure questions of law that do not touch upon decisions that are under the discretion of the Attorney General or Secretary of Homeland Security are left to the Courts. The Courts, thus, have the jurisdiction to review a determination of CIS that an applicant is statutorily ineligible to be considered for a COS. If the Court concludes that the agency’s decision regarding eligibility is erroneous, the Court possesses jurisdiction to remand the case to CIS, ordering the agency to re-evaluate the applicant’s application in accordance with the appropriate eligibility principles. However, INA Section 242(a)(2)(B)(ii) does not authorize the Court to dictate how the agency ought to exercise its discretion. Does that mean that CIS could misuse the discretion provided by the INA, and when challenged could sway the Court in its favor by asking Court to give deference to its newfound interpretation of the regulations? The short answer is “most likely not.” Though CIS could argue that the statute, INA Section 248, is ambiguous, and, thus the Court should give significant deference (Chevron deference) to its interpretations, it is highly likely that the Court will buy CIS’s argument because CIS neither changed its interpretation and interaction of the regulations using the exercise of delegated lawmaking authority nor has been supporting its newfound interpretation of the regulations through any precedent decision, interpretative rule or other generally applicable agency documents. Thus, the Courts will not only hesitate to extend Chevron deference to CIS’s new interpretation of the existing regulations, it would even waver to apply to apply Skidmore deference which is generally applied to informal agency actions. Accordingly, the Court will only accord the agency’s interpretation the low level of deference that is given to the informal interpretive decisions of low-level agency officials. See Cmty. Health Ctr. v. Wilson-Coker, 311 F.3d 132, 138 (2d. Cir. 2002). Under this standard, the Court will defer to the agency’s interpretation, “but only to the extent that [it has] the power to persuade.” See Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S. Ct. 161, 89 L. Ed. 124 (1944). It would be an arduous task for CIS to persuade the Courts because both California and Vermont Service Centers are on record as taking the position that a COS to F-1 remains approvable as long as the applicant’s status at the time of filing was within 30 days of the program start date listed on the Form I-20. Thus, until CIS supports its shift in the interpretation through either rule making process or any interpretive rule, internal agency guidance/memo or a similar document, Courts will be reluctant to give any significant deference to CIS’ new interpretation. As such, it is highly likely that courts will not side with CIS in supporting its changed interpretation of the existing regulations. Conclusion: Based on the foregoing discussion, it can be deduced that CIS’ interpretation of the regulation that there should not be a gap of more than 30 days between expiry of applicant’s B-2 nonimmigrant status and the “deferred” program start date is erroneous because neither the statute and nor its related regulations support the newfound interpretation. Further, because CIS would significantly risk losing in the Court when challenged on its new interpretation, it would be prudent for CIS to revert to its prior interpretation and stop denying such B-2 to F-2 COS applications.  SEVIS is a web-based system for maintaining information on international nonimmigrant students and exchange visitors in the United States.  All SEVP‑certified schools in the United States are required to have DSOs to communicate with Student and Exchange Visitor Program (SEVP), update student records, and help students maintain their student status by providing advice, or helping them fill out important forms.  Chevron v. Natural Resources Defense Council, 467 U.S. 837 (1984).  either through notice-and-comment procedures; or the trial-type procedures that are characteristic of formal agency adjudications.  Skidmore v. Swift & Co., 323 U.S. 134 (1944).
New Company L-1A Petition could provide a viable and valuable alternative to Foreign Companies, actively engaged in doing business abroad, to set up operations in the United States and transfer key Managerial and/or Executive level employees to manage and run the newly established Entity. In order to pass the credibility threshold of the adjudicating officer at the United States Citizenship and immigration Services (USCIS), and to ensure a favorable adjudication, the New Company L-1A Petition should be meticulously prepared and vetted before submission. This Article endeavors to summarize top five (5) mistakes one should never make when preparing and submitting a New Company L-1A Petition. 1. Choice of Business Venture The choice of business venture for the newly formed business Entity in the United States should be judiciously made. Although there is no regulatory restriction on the type of business to be pursued by the Foreign Company, not all business ventures tend to be favorable for the New Company L-1A Petition purpose. Unless supported by a strong market analysis and the other supporting documentation explaining the need and purpose to venture into a new business in the United States, it is always a safe choice for the new U.S. Entity to engage or expand into what the Foreign Company is doing abroad provided the business would require hiring of other Managerial, Supervisory or Professional level employees. Further, when deciding the business venture, both the short-term goal of obtaining an approval on the initial L-1A Petition, and the long-term vision of successfully securing Lawful Permanent Resident (LPR) status for the Foreign National should be taken into consideration. In order to achieve both goals, it is a must that the business, to be pursued by the U.S. Entity, should project hiring of staff to support the sponsored Managerial and/or Executive level position. Specifically, the new business should project hiring of other Managerial, Supervisory or Professional level employee during the first year of its operation. As such, when conceptualizing the business idea, rather than focusing on the number of employees, emphasis should be given to the “type” of employees to be hired by the new Company in the United States. 2. Business Plan Business Plan forms the backbone, or one could say the Central Nervous System, of the New Company L-1A Petition. As such, defects and/or inconsistencies in the Business Plan could irreparably harm the L-1A Petition adjudication. To avert that, one should consider hiring a seasoned Business Plan preparer who is aware of the specific L-1A Petition requirements. Since immigration law is so dynamic, the Business Plan prepared by a professional should be reviewed item-by-item and line-by-line by the Attorney preparing the L-1A Petition. Blindly submitting the Business Plan prepared by the Business Plan preparer could hurt more than help the L-1A Petition as the details contained in the Business Plan should be supported by rest of documents and information contained in the Petition. More than anything, the Business Plan should appear realistic. Also, make sure it is detailed, logical and consistent. Further, the projections, whether it relates to company’s initial investment, hiring or revenue should appear real and achievable based on industry standards, and company’s size, type and services/products offered. Last but not the least, the Business Plan should contain strong market analysis supporting “why” the Foreign Company decided to venture into a specific business; compare and analyze competitor’s landscape; and provide a time-line of the proposed activities to be undertaken by the new company during the first year of its operation. 3. Organizational Chart Besides Business Plan, much thought and acumen should be utilized when preparing an Organizational Chart for a New Company L-1A Petitions. Like Business Plan, first and foremost the Organizational Chart should appear real and credible. Some of the common mistakes on Organizational Chart include, but are not limited to, projecting too many managers and supervisors in a small organization, or projecting managers and/or supervisors without any direct reports to manage or supervise. Sometimes, Employers and Practitioners make the mistake of putting all of the supporting personnel under the direct supervision of Beneficiary without creating any hierarchy. Unless all of the personnel under Beneficiary’s direct supervision are Professionals, projecting two-tier Organizational Chart could be disastrous for the L-1A Petition. Further, the Organizational Chart should include all prospective hiring of employees, as indicated on the Business Plan, during the first three (3) years of company’s operation. In doing so, the preparer should include the future hiring month and year for each position. To add, it is always a better idea to support the Organization Chart by including a separate chart stating the summary of proposed job duties for each position title, and including education and experience required for each position. 4. Leased Office Space Though it may appear logical that any new business setting up its operations in the United States would obtain at least an office space, in practice, new companies, especially small and medium-sized companies, setting their foot in the United States, do not want to make a financial commitment by leasing an office space and paying monthly rents. Note that it is an absolute must that New Company L-1A Petitions should be supported by documentation showing that the newly formed business Entity in the United States has secured “adequate” office space. What is adequate depends on the type and nature of business. If the business needs to have a storage or manufacturing space, show that through additional lease agreements. Further, the leased office space should be proportionate to the hiring projections contained in the Business Plan. At least, the leased office space should be enough to accommodate all personnel to be hired during the first year of Company’s operation. If the leased office space may fall short to accommodate all first year hiring, sincere effort should be made to document and explain on the Petition that the Company has already sought permission from the leasing company regarding extra space allotment in the future. 5. Ability to Invest in the New Company & Ability to Pay the Beneficiary The success of L-1A Petition adjudication demands that the Foreign Company should show and prove its ability to invest in the United States Entity and to pay salary to the Foreign National Beneficiary. Because the new company will be setting up its foot in the United States, it is logical to assume that it will primarily rely on the funds of the Parent company to support its formation and existence, at least during the first year of its operation. As such, the investment to be made by the Foreign Company in setting up the U.S. Entity, and the staffing and operational costs to run the United States office should be projected keeping in mind the financial health of the Foreign Company. Exaggerating initial investments, and staffing and operational cost and not supporting those with the availability of funds in the Foreign Company’s bank account(s) or through future revenue generation could be lethal for L-1A Petition adjudication. Conclusion To conclude, the success of a New Company L-1A Petition depends on a number of factors. Besides complying with the regulatory requirements, first and foremost, the choice of Business venture and its Business Plan should appear realistic. Additionally, for the Petition to pas USCIS Adjudicator’s credibility test, the projections on the Petition and Business Plan, be it pertains to financial, prospective hiring, investment, etc. should appear reasonable and achievable. Most importantly, whether or not the new business will hire other Managerial, Supervisory or Professional level employee to support the sponsored Managerial or Executive position within first year of its operation should be considerably thought-out. The specifics are important too. So, much care should be exercised in making and projecting the Organizational Chart, and in providing a time-line of the activities to be carried out by the New Company during its first year of operation. Further, the New Company should not only lease an office space but it should lease enough office space to accommodate all personnel as per the hiring projections. Last but not the least; before embarking on the L-1A Petition path, Foreign Company’s financial health checkup is required to ensure that it can make the projected investment in the United States, and also pay salary to the Foreign National Beneficiary, at least during Company’s first year of operation in the United States.  and subsequently Extension Petition after one year of initial Petition approval.  Or an Immigrant Visa at the U.S. Consular Post abroad.  utilizing the EB-1(C) Preference Classification for Multinational National Executives and Managers.  Holds at least a Bachelor’s degree and are members of the profession.
October 2016 Visa Bulletin Update: USCIS to use “Filing Date” Chart for Accepting Adjustment of Status Applications.
by Rabindra Singh
Yesterday, September 21, 2016, U.S. Citizenship and Immigration Services (USCIS) announced that in October 2016 it will accept Adjustment of Status Applications based on the “Filing Date” chart for most of the employment- and family-based immigrant visa categories. This is positive news for everyone, especially for Indian and Chinese Nationals. Note that the “Filing Date” chart will not apply to the employment-based, fourth preference (EB4) category for certain religious workers; and the employment-based, fifth preference (EB5) category for cases filed through regional centers. For your reference, listed below is the web link for accessing and viewing the “Filing Date” charts for both employment- and family-based filings for the month of October 2016. https://travel.state.gov/content/visas/en/law-and-policy/bulletin/2017/visa-bulletin-for-october-2016.html
“FAMILIAL RELATIONSHIP” WITHIN THE CONTEXT OF PERM LABOR CERTIFICATION APPLICATION.
by Rabindra Singh
Introduction As compared to other myriad lurking issues, the issue of family relationship between a sponsored Foreign National and the sponsoring Employer does not arise that frequently within the context of Permanent Labor Certification Application. However, when it does, it should be dealt with utmost care and attention because not doing so may invite a supervised recruitment, and possibly a denial. Few cases have dealt specifically with the familial relationship issue between a sponsored Foreign National and the owners, stockholders, partners, corporate officers, or incorporators of the sponsoring Employer. In a recent decision, Palm café Restaurant, 2012-PER-01446 (BALCA June 7, 2016), the Board of Labor Certification Application (Board), dealing with the issue of family relationship between the owners of the sponsoring Employer and sponsored Foreign National, imported and applied the “totality of circumstances” test in determining whether the Employer made a genuine determination of foreign labor by sponsoring the Foreign National, and whether a genuine job opportunity existed for American workers to compete for the job opening. The “totality of circumstances” test was previously laid down by the en banc panel of the Board in the landmark pre-PERM decision of Matter of Modular Container Systems, Inc., 89-INA-228 (BALCA July 16, 1991). The Board in Modular Container specifically dealt with the ownership interest issue of the sponsored Foreign National in the sponsoring organization. Declaring Familial Relationship on a PERM Labor Certification Application Before delving into the specifics of the “totality of circumstances” test as was applied in the Palm Café by the Board, and before finding and understanding the definition of “familial relationship”, it is important to understand why an Employer is required to declare the familial relationship on the Permanent Labor Certification Application (ETA Form 9089). Labor Certification using the Department of Labor’s (DOL) Program Electronic Review Management (PERM) system is an attestation-based program. Among other attestations, the prospective Employer sponsoring a Foreign National for an employment-based Lawful Permanent Resident (LRP) status (commonly referred to as “Green Card”) must attest that the job opportunity described in the Labor Certification Application has been and is clearly open to any U.S. workers. Accordingly, the regulations require the Employers to conduct recruitment steps in good faith to recruit U.S. workers prior to submitting the ETA Form 9089. The DOL’s Certifying Officer (CO) may certify the Labor Certification Applications only after finding that there were no able, willing, qualified, and available U.S. workers to fill the position at the time the Labor Certification Application was filed. Therefore, the CO is required to verify the attestations made by the prospective Employer on the Form ETA-9089 by determining whether or not the Employer conducted a good faith test of the domestic labor market before submitting the Labor Certification Application. In particular, regulations require the Employer to certify, under Penalty of Perjury, to the conditions of employment listed on the Form ETA-9089. See 20 CFR Section 656.10(c). Failure to attest to any of the ten (10) conditions listed under Section 656.10(c) results in the denial of the Labor Certification Application. One of the listed conditions requires the Employers to attest that the job opportunity has been and is clearly open to any U.S. worker. Further, the regulations address the potential influence and control over a job opportunity by the named Foreign National. Specifically, 20 CFR Section 656.17(l) states that: “If the Employer is a closely held corporation or partnership in which the Foreign National has an ownership interest, or if there is a familial relationship between the stockholders, corporate officers, incorporators, or partners, and the Foreign National, or if the Foreign National is one of a small number of employees, the Employer in the event of an audit must be able to demonstrate the existence of a bona fide job opportunity, i.e., the job is available to all U.S. workers…” [emphasis supplied] Thus, if there exists a familial relationship between the owners, stockholders, partners, corporate officers, or incorporators, and the Foreign National sponsored by the Employer; the Employer must be able to demonstrate the existence of a bona fide job opportunity, i.e., the job is available to U.S. workers. In order to provide the CO the opportunity to evaluate whether the job opportunity has been and is clearly open to qualified U.S. workers, an Employer must disclose any familial relationship(s) by marking “yes” to Question C.9 on the ETA Form 9089. Note that the failure to disclose familial relationships when responding to Question C.9 is a “material” misrepresentation, and, may therefore be grounds for denial, revocation or invalidation in accordance with the DOL’s regulations. Definition and Scope of Familial Relationship The next basic issue to consider and analyze is the existence of the type of family relationship between the stockholders, corporate officers, incorporators, or partners, and the Foreign National. More specifically, when should an Employer mark “yes” when responding to the Question C.9 on the Form ETA-9089. Surprisingly, or not surprisingly, the regulations do not define the term “familial relationship.” So, where to look further? The DOL, through its FAQ defined the term ““familial relationship” by stating the following: “A familial relationship includes any relationship established by blood, marriage, or adoption, even if distant. The FAQ listed few examples what it meant by “distant relationships.” For example, the definition of familial relationship includes cousins of all degrees, aunts, uncles, grandparents and grandchildren. It also includes relationships established through marriage, such as in-laws and step-families. Further, the FAQ stated that the term “marriage” will be interpreted to include same-sex marriages that are valid in the jurisdiction where the marriage was celebrated. Additionally, the FAQ provided guidance that a familial relationship between the foreign national and the Employer does not establish the lack of a bona fide job opportunity perse. Ultimately, the question of whether a bona fide job opportunity exists in situations where the foreign national has a familial relationship with the Employer depends on “whether a genuine determination of need for foreign national labor can be made by the Employer corporation and whether a genuine opportunity exists for American workers to compete for the opening. Therefore, the Employer must disclose such relationships, and the CO must be able to determine that there has been no undue influence and control, and that these job opportunities are available to U.S. workers. When the Employer discloses a family relationship, and the Labor Certification Application raises no additional denial issues, the Employer will be given an opportunity to establish, to the CO’s satisfaction, that the job opportunity is legitimate and does not pose a bar to certification. The CO will consider the Employer’s information and the “totality of the circumstances” supporting the Labor Certification Application in making this determination. “Totality of Circumstances” Test So, what does the “totality of circumstances” test entails, and what all factors the CO needs to look into in order to determine whether or not the Employer made a genuine determination of the need for foreign labor, and whether a genuine opportunity exist for American workers to compete for the job opening. As the Board laid down in Modular Container, the CO must consider, among other factors, whether the Foreign National: 1. Is in the position to control or influence hiring decisions regarding the job for which labor certification is sought; 2. Is related to the corporate directors, officers, or employees; 3. Was an incorporator or founder of the company; 4. Has an ownership interest in the company; 5. Is involved in the management of the company; 6. Is on the board of directors, 7. Is one of a small number of employees; 8. Has qualifications for the job that are identical to specialized or unusual job duties and requirements stated in the Application; and 9. Is so inseparable from the sponsoring Employer because of his or her pervasive presence and personal attributes that the Employer would be unlikely to continue in operation without the Foreign National. Thus, the above listed factors are not exclusive, and the CO should also take into consideration the Employer’s compliance and good faith in the Labor Certification Application process. Further, no single factor, such as a familial relationship between the Foreign National and the Employer, shall be controlling. More so, the Employer can document and provide, when asked, any additional information which may support good faith test of the U.S. labor market. Briefly going through the facts and analyzing how Board addressed and resolved the issue of familial relationship in Palm Café can provide a good understanding on how the above-mentioned factors might come into play. In Palm Café, the Employer sponsored one his relatives for the position of Chef and Head Cook. The Labor Certification Application was later selected for an Audit. Among other things, the Audit letter requested for certain business records to determine whether the foreign worker had influence and control over the job opportunity. Some of the requested information and documentation included the following: documentation of the U.S. workers who applied for the position; copies of Employer’s articles of incorporation, partnership agreements, state or federal documentation in connection with the establishment of the sponsoring Employer, and business licenses; an outline of the corporate structure and list of officers and partners; a statement of the employees with payroll sign-off responsibility; a statement describing familial relationships between parties with ownership interests and the foreign worker; a financial history of the Employer; the names of the Employer’s officials responsible for hiring or having control or influence over hiring decisions, etc. Later, finding out that the sponsored employee is the brother of one of the husband-and-wife owners; the CO denied certification stating that the DOL was unable to determine whether the job opportunity was open and available to U.S. workers. Specifically, the CO cited the following factors for concluding that the job opportunity was not open and available to U.S. workers: (1) the Foreign National is the brother of one of the owners; (2) the Foreign National is “possibly an integral part of the Employer’s business”; and (3) “conceivably the Employer’s business operations cannot continue without the foreign worker,” which gives the Foreign National “considerable control and influence as to how the Employer’s restaurant is operated. The denial, however, did not raise any objection to the Employer’s good faith recruitment efforts in testing the United States labor market. Siding with the Employer’s argument, and based on the documentation provided following audit request, the Board agreed with Employer’s attestation that no U.S. worker responded to the newspaper advertisements and SWA job posting. Finding the case analogous to a post-Modular Container decision, Altobeli’s Fine Italian Cuisine, 1990-INA-130 (BALCA Oct. 16, 1991), the Board found eight (8) out of the nine (9) factors, as contained in the “totality of circumstances” test, not applicable in Palm Café. Specifically, the Board found that: (1) the Foreign National did not control or influence Employer’s hiring decisions; (2) the Foreign National was not an incorporator or founder of the company; (3) the Foreign National did not have an ownership interest in the company; (4) the Foreign National was not on the board of directors; (5) the Foreign National was not one of a small number of employees; and (6) the Foreign National did not have qualifications identical to specialized or unusual job duties and requirements stated in the Application. The Board also concluded that two other factors - whether the foreign national was involved in the management of the company, and whether the foreign national was inseparable from the sponsoring Employer - also were not applicable here. Although the organizational chart provided by Employer indicated the Head Cook position in charge of several line cooks, there was no evidence in the job description, submitted by the Employer during the audit that the Head Cook would engage either in management activities or payroll activities. In addition, the Board agreed with the Employer that the restaurant can function without the foreign national, and there were other cooks who could assume the duties of the Head Cook. Conclusion Based on the foregoing, when deciding whether or not to pursue and submit a Labor Certification Application on behalf of a Foreign National who happens to have a family relationship with the owners, stockholders, partners, corporate officers, or incorporators of the sponsoring Employer, one should take into consideration all nine (9) factors of the “totality of circumstances” test. No single factor can and should be controlling. Before doing so, Employers and/or Practitioners should take a careful look at the definition of “familial relationship.” Employers and/or Practitioners should also keep into their audit file any and every document/information which could suggest that there exists a genuine job opportunity for which the Employer conducted the labor market test in good faith. Last but not the least; it is worth remembering that the failure to disclose familial relationships on the Labor Certification Application is a “material” misrepresentation, and, may therefore be grounds for denial, revocation or invalidation of the Labor Certification in accordance with the DOL’s regulations.  or for an Immigrant Visa to be issued aboard at the U.S. Consular Post abroad.  See 20 CFR Section 656.10 (c)(8).  Is the employer a closely held corporation, partnership, or sole proprietorship in which the alien has an ownership interest, or is there a familial relationship between the owners, stockholders, corporate officers, incorporators, or partners, and the alien?  See “PERM FAQ” (July 28, 2014).  The Board found that there was a bona fide job opportunity where the alien’s brother and sister-in-law owned 75 percent of the Employer’s stock.
USCIS TO HIKE FILING FEES AND IMPOSE A NEW FEE FOR THE EB-5 INVESTOR VISA PROGRAM.
by Rabindra Singh
Just when employers in the United States were unhappy and raising concerns about the steep increase in the statutory fees for certain H-1B and L-1 petitions, and about the lengthy delays in adjudicating petitions, the Department of Homeland Security (DHS) threw another curved ball. Putting into practice the “Full Cost Recovery” theory, DHS is proposing to raise USCIS filing fees by a weighted average of 21 percent and impose a new fee on the Regional Centers with regard to EB-5 processing in order to fully recover costs for its services and to maintain adequate service. The proposed rule has been published in the Federal Register and is open for public comments until July 5, 2016. As many are aware, U.S. Citizenship and Immigration Services (USCIS) is primarily funded by immigration and naturalization benefit request fees charged to applicants and petitioners. Fees collected from individuals and entities filing immigration benefit requests are deposited into the Immigration Examinations Fee Account (IEFA) and used to fund the cost of processing immigration benefit requests. USCIS calculates its fees to recover the full cost of USCIS operations, which do not include the limited appropriated funds provided by Congress. USCIS anticipates if it continues to operate at current fee levels, it will experience an average annual shortfall of $560 million between revenues and costs. This projected shortfall poses a risk of degrading USCIS operations. The proposed rule would eliminate this risk by ensuring full cost recovery. As such, DHS is proposing to adjust fees by a weighted average increase of 21 percent (%). Some the major highlights of the proposed rule include, but are not limited to: EB-5 (IMMIGRANT INVESTOR) VISAS: NEW FEE FOR THE ANNUAL CERTIFICATION OF REGIONAL CENTER, FORM I-924A. In order to recover the full cost of processing, DHS is proposing to establish a new fee of $3,035.00 for the Annual Certification of Regional Center, Form I-924A, pertaining to the EB-5 Regional Center investor visa program benefit. As many are aware, Form I-924A is used by Regional Centers to demonstrate continued eligibility for their designation. Although approved regional centers are required to file the Form I- 924A annually, there is currently no filing fee and the processing cost is borne by other individuals paying fees for immigration benefits. Until now USCIS was using its adjudicative resources to handle Form I-924A without charging any fee for approximately 800 currently approved Regional Centers. This USCIS’ annual subsidy provided to the EB-5 Regional Center is soon going to end. Note that the rule also proposes to change the title of Form I-924A from “Supplement to Form I-924” to “Annual Certification of Regional Centers.” Further, the proposed fee for processing the Form I-526, Immigrant Petition by Alien Entrepreneur, will increase by 145 % to $3,675 (from the current fee of $1,500.00). The good news is that the fee for processing Form I-829, Petition by Entrepreneur to Remove Conditions, is going to remain the same at level of $3,750.00. THREE-LEVEL FEE STRUCTURE FOR THE APPLICATION FOR NATURALIZATION, N-400. DHS is proposing to establish a three-level fee for the Application for Naturalization, Form N-400. First, DHS would increase the standard fee for Form N-400 from $595 to $640. Second, DHS would continue to charge no fee to an applicant who meets the requirements of sections 328 or 329 of the Immigration and Nationality Act of 1952 (INA) with respect to military service and applicants with approved fee waivers. Third, DHS would charge a reduced fee of $320 for naturalization applicants with family income greater than 150 percent and not more than 200 percent of the Federal Poverty Guidelines. DHS is proposing this change to increase access to United States citizenship. USCIS WILL NOT BEGIN PROCESSING THE REQUESTED IMMIGRATION BENEFIT UNTIL THE FILING FEE AND/OR BIOMETRICS FEE PAYMENT GETS CLEARED. Current regulations provide that when a check or other financial instrument used to pay a filing fee is subsequently returned as not payable, the remitter is notified and requested to pay the filing fee and associated service charge within 14 calendar days, without extension. Further, if a benefit request is received by DHS without the correct biometric service fee, DHS notifies the applicant of the deficiency and takes no further action until payment is received. In accordance with these provisions, when a payment is returned as non-payable, USCIS places the immigration benefit request on hold and suspends adjudication. If a check is dishonored or payment otherwise fails, USCIS assesses a $30.00 charge and pursues the unpaid fee and penalty using administrative debt collection procedures. If the biometrics services fee was required and is missing, USCIS generally provides the filer 30 days to correct the payment. If payment is made within the allotted time, USCIS resumes processing the benefit request. If the filer does not correct the payment, USCIS rejects the filing. If the biometric fee is not paid, USCIS considers the benefit request as abandoned. DHS is proposing to eliminate the above-mentioned rules requiring that cases be held while deficient payments are corrected. USCIS clears payment checks through the Automated Clearing House (ACH) by converting checks to electronic payments. Because USCIS converts checks into ACH payments, there is currently no or very little delay before USCIS knows whether the check is valueless. DHS is proposing that USCIS will not begin processing the benefit request until the payment has cleared. DHS anticipates that the proposed change would reduce the USCIS administrative costs for holding and tracking immigration benefit requests with rejected payments. This change would streamline USCIS’ process for handling immigration benefit requests when payments are returned as not payable or do not include the required biometric services fee. HOLDING THE BIOMETRIC SERVICES FEE AT ITS CURRENT LEVEL. Though the model used by the DHS suggested a reduced Biometrics fee of $75.00, it is proposing to hold the Biometrics service fee at its current level of $85.00. DHS believes that the importance of and uncertainty in the Biometric services area justifies holding that fee at $85.00. REFUNDS DHS is proposing a minor change in the provision regarding USCIS fee refunds. In general, except for a premium processing fee, USCIS does not refund a fee regardless of the decision on the immigration benefit request. Going forward, USCIS will refund a fee if the agency determines that an administrative error occurred resulting in the incorrect collection of a fee. Examples of USCIS errors include: Unnecessary filings: Cases in which USCIS (or DOS in the case of an immigration benefit request filed overseas) erroneously requests that an individual file an unnecessary form along with the associated fee; and Accidental payments: Cases in which an individual pays a required fee more than once or otherwise pays a fee in excess of the amount due and USCIS (or the DOS in the case of an immigration benefit request filed overseas) erroneously accepts the erroneous fee. A copy of the proposed rule published in the Federal Register, and more detailed information regarding the proposed fee changes can be gathered at: https://www.federalregister.gov/articles/2016/05/04/2016-10297/us-citizenship-and-immigration-services-fee-schedule
The Department of State’s June 2016 Visa Bulletin has announced major retrogression in the Final Action cut-off dates for India and China. Specifically, in June 2016, India EB-2 Final Action cut-off date will retrogress to October 1, 2004, for the final issuance of immigrant visas. The India EB-2 Final Action cut-off date stood at November 22, 2008, in the May 2016 visa bulletin. Thus, India EB-2 Final Action cut-off date will retrogress by more than four (4) years in June 2016. India EB-3 will continue to move at the snail’s pace. The Final Action cut-off date for EB-3 India will move from September 1, 2004 to September 22, 2004, in June 2016. Similar to India, EB-2 Final Action cut-off for China will retrogress by 20 months to January 1, 2010. Like EB-2, in June 2016, EB-3 China Final Action cut-off will also retrogress from current August 15, 2013, to January 1, 2010. The DOS has cited “extremely high levels of Employment-based demand for adjustment of status cases filed with USCIS during past two (2) months” as the reason for retrogression of the EB-2 preference Final Action cut-off dates for India and China. The June 2016 Visa Bulletin does not project a bullish forward movement in the immediate future for both India and China EB-2 and EB-3 preference categories. EB-2 India Final Action cut-off date is expected to advance slowly, at a pace consistent with that of the India EB-3 preference cut-off date, during the last three (3) months of the fiscal year. The projection is much worse for the Chinese nationals as the retrogressed Final Action cut-off is not likely to advance either in the EB-2 or EB-3 category. Like the EB-2 preference category, Final Action cut-off date for the FB-4 preference category for both India and China will also retrogress in June 2016. India FB-4 Final Action cut-off will backward from present July 22, 2003, to January 1, 2001. Likewise, China FB-4 will retrogress from July 22, 2003, to January 1, 2003. While DOS is not in a position to project whether or not the China FB-4 will advance until the end of current fiscal year, it is almost certain that India FB-4 will not advance during the last quarter.
On April 7, 2016, U.S. Citizenship and Immigration Services (USCIS) announced that it has reached the congressionally mandated H-1B cap for fiscal year (FY) 2017. USCIS also received more than the limit of 20,000 H-1B petitions filed under the U.S. advanced degree exemption. USCIS will now use a computer-generated process, also known as the lottery, to randomly select the petitions needed to meet the caps of 65,000 visas for the general category and 20,000 for the advanced degree exemption. With uncertainty looming large as to who may or may not get selected in the H-1B lottery, it is time that H-1B visa hopefuls (and their prospective H-1B employers) start to explore other nonimmigrant work visa options to allow them to work and live in the United States on a temporary basis. CONSIDER THE “CAP-EXEMPT” H-1B VISA OPTION. There are certain categories of cap-exempt H-1B visas. One such category is for foreign nationals having (or hoping to have) an employment offer from an institution of higher education (or related or affiliated nonprofit entities), or from a nonprofit/government research organization. To be classified as cap-exempt, it not mandatory that a prospective H-1B employee should be employed by the institution of higher education (or related or affiliated nonprofit entities), or nonprofit/governmental research organization. A prospective H-1B employee, employed by any employer, who will perform the majority of his/her work at the qualifying institutions, could qualify for the cap-exempt H-1B visa provided the work performed should "predominantly further" the "normal, primary, or essential purpose" of the qualifying institution. To illustrate, consider the case of an Information Technology (IT) company having a contract with a U.S university for hiring and placing IT consultants for developing/customizing university’s software. Assuming that IT consultants hired by the consulting company will primarily work developing/customizing the university's software and that the work will benefit the university in reaching one of its stated primary or essential goals; such employees may be treated as H-1B cap-exempt even though they will not be employed directly by the university. A thorough review of the Memorandum promulgated by the USCIS that deals with cap exempt H-1B opportunities reflects a great deal of flexibility. Furthermore, a thorough analysis needs to be undertaken to ensure whether the employer is or is not cap-exempt. CONSIDER OTHER PROFESSIONAL AND SPECIALTY OCCUPATION WORK VISA CLASSIFICATIONS: TN, H-1B1 AND E-3 VISAS. There are three nonimmigrant visa categories quite similar to H-1B visas that are designated for temporary professional workers from specific countries. These visas are based upon specific trade agreements that foreign nations have signed with the United States. The ‘H-1B1' visa program is designed specifically for the nationals of Chile and Singapore. Up to 6,800 visas (1,400 visas for the nationals of Chile, and 5,400 visas for the nationals of Singapore) are set aside from the H-1B cap of 65,000 during each fiscal year for the H-1B1 program. Additionally, the Canadian and Mexican temporary professional workers may explore the potential option of obtaining TN classification. With regard to the TN classification, the regulations specify various categories of professions as well as the minimum qualifications for each profession that are covered by Appendix 1603.D.1 to Annex 1603 of North American Free Trade Agreement (NAFTA). In addition, nationals of the Commonwealth of Australia may qualify for E-3 temporary work visas. Like the H-1B1, E-3 visas are subject to an annual cap of 10,500 per Fiscal Year. Occupationally, H-1B1, TN and E-3 mirror the H-1B visa in that the foreign worker must be employed in a specialty occupation (defined loosely as "professional"). While both the H-1B1 and E-3 require Labor Condition Applications (LCA) from the Department of Labor (DOL), the TN visa does not require the employer to obtain an LCA. However, unlike the H-1B visa, which is a "dual intent" visa, none of the above-mentioned categories are "dual intent". In simple terms, while a foreign national employed in valid H-1B status can pursue employed-based immigrant visa (commonly referred to as employed-based "Green Card"), foreign nationals employed on H-1B1, TN or E-3 lack this advantage. However, foreign nationals employed in these categories can pursue their employment-based Green Card by changing their status to another nonimmigrant visa category such as H-1B, L-1, etc., which recognizes dual intent. The H-1B1, TN and E-3 are not classifications for everyone. They are specific to certain geographic areas in the world. Nevertheless, if in the past, individuals have immigrated to Australia and/or Canada (or other countries) and obtained their Citizenship there, then this may open the door to a foreign national to live and work in the United States using another work visa. As such, leave "no stone unturned". E-1 TREATY-TRADER AND THE E-2 TREATY INVESTOR VISAS. A foreign national may qualify for an E visa depending upon what country he/she is from. There are certain countries in the world that have a specific type of treaty or agreement with the U.S. The most common of these agreements or treaties is referred to as a Bilateral Investment Treaty (BIT), a Free Trade Agreement (FTA), or a Treaty of Friendship, Commerce and Navigation (FCN) with the United States. There are two types of E visas: Treaty Trader visa (E-1) and Treaty Investor visa (E-2). Though nationals of a foreign country having FTA with the United States may qualify for both an E-1 and E-2 visa, BIT allows only for an E-2 visa. For an E-1 visa, a foreign national entering the United States is required to carry on substantial trade that is international in scope, and principally between U.S. and the foreign country. The E-2 visa, on the other hand, requires the foreign national to develop and direct the operations of an enterprise in which the foreign national has invested, or is actively in the process of investing, a substantial amount of capital. The enterprise must be a bona fide enterprise. Further, a "key employee", including the executives and supervisors, or persons whose services are "essential to the efficient operation of the enterprise" may qualify for an E-1/E-2 visa depending upon the bilateral agreement between the foreign country and the United States. ALTERNATIVES FOR INTERNATIONAL STUDENTS ON OPT. There may be alternate visa options available to foreign graduates of U.S. universities. If not selected for H-1B cap, F-1 students in Science, Technology, Engineering, and Mathematics (STEM) fields, who have elected to pursue 12 months of OPT in the United States, can extend the OPT period by 24 months (STEM OPT extension). To get the extension, the student should be employed by an employer who is duly enrolled in the E-Verify Program, and should have received an initial grant of post-completion OPT related to such a degree. The new STEM extension regulations of the OPT period for STEM degree holders gives U.S. employers several chances to recruit these highly desirable graduates through the H-1B process, as the extensions oftentimes may be long enough to allow for H-1B petitions to be submitted in several successive fiscal years. Students who do not hold STEM degrees may choose the option of going back to school. For instance, a student who has completed a bachelor's degree from a U.S. institution may exercise the option of enrolling in another bachelor's or master's degree program. While enrolling in a bachelor's degree program may be a good idea to buy time in the United States with the hope of making it into another H-1B cap filing cycle the next fiscal year. The option of enrolling in a master's degree program should be exercised with caution. Before enrolling in a master's degree program, a student should double check whether the U.S. University qualifies as an "institution of higher education" as defined by section 101(a) of the Higher Education Act of 1965 because not every master's degree from a U.S. educational institution will qualify an individual for the H-1B master's cap. For example, some private academic institutions are "for profit" organizations. As such, holding a master's degree from such academic institutions would not qualify the foreign national for the H-1B master's cap. L-1A AND L-1B VISAS FOR INTRACOMPANY TRANSFEREES OF MULTINATIONAL COMPANIES. Employees employed by companies with an offshore presence can explore the possibility of using the L-1 nonimmigrant visa option. The L-1 visa program was designed to facilitate the temporary transfer of foreign nationals with executive, managerial, and specialized knowledge skills to the United States. Thus, even within the L category, important distinctions are drawn between the two types of L visas: The L-1A for executives and managers, and the L-1B for employees with specialized knowledge. L-1A executives direct the management of an organization or a major component or function of an organization. Similarly, L-1A managers have the primary duty of directing an organization, or area of an organization, and supervision or control of the work of others, or management of an essential function at a senior level in the organization's hierarchy. Managers and executives need not supervise subordinates. Regulations allow for "functional management". To qualify for an L-1B visa, the employee should have the specialized knowledge of the company’s product, service, research, etc., and its application in international markets, or have an advanced level of knowledge of processes and procedures of the company. The use of the L-1 is often referred to strategically as a "transfer out". The idea behind the "transfer out" is that the prospective L-1 candidate is transferred outside the U.S. to work for the subsidiary, affiliate or branch office of the qualifying organization in the U.S. After spending 365 days (one year) outside the U.S, the individual can be brought back to the U.S. in L visa status. The advantage to the use of the "transfer out" strategy is also that if the individual is serving as an executive or manager outside the U.S. and they return as an executive or manager to the U.S. as an L-1A then they can immediately apply for the green card in the E1-3, multinational manger/executive category. This is a pre-certified employment-based green card category and one of the very fastest ways to get the green card in the U.S. O-1 VISA FOR FOREIGN NATIONALS WITH EXTRAORDINARY ABILITY OR ACHIEVEMENT IN “ANY” FIELD OF ENDEAVOR. There are two types of O-1 visas. Like the L-1 visas, O-1 visas are not subject an annual cap. The O-1 visa category is primarily divided into two categories: O-1A and O-1B. O-1A is for foreign nationals having "extraordinary ability" in the field of the arts, sciences, education, business or athletics. If in motion picture or TV production or an artist, the person may qualify for O-1B visa provided she/he has demonstrated a record of "extraordinary achievement." Sometimes, for artists, all that is required is a showing of "distinction". Thus, there are different standards under the O-1 visa. It is important to know that O-1 visas are not limited to the above-mentioned categories. USCIS interprets the statute to encompass "any field of endeavor" including craftsmen, horse trainers and lecturers. Further, the term "arts" includes not only the principal creators and performers, but also essential personnel such as directors, set designers, choreographers, orchestrators, coaches, arrangers, costume designers, producers, make-up artists, stage technicians and animal trainers. CONCLUSION. On the basis of the foregoing, it is safe to conclude that before packing-up your bags and leaving the U.S. or giving-up on the hopes of living and working in the United States, prospective H-1B visa beneficiaries should carefully explore alternative work visa options that may be available to them in the United States. One may qualify for a cap-exempt H-1B visa if she/he has an offer of employment from an institution of higher education (or related or affiliated nonprofit entities), or from a nonprofit/government research organization. Even employment with a third-party employer may qualify an individual for cap-exempt H-1B provided the beneficiary will perform the majority of work at the qualifying institutions and, the work will benefit the primary or essential purpose of the qualifying institution. Also, it continues to be prudent for the national of a foreign country to check on the type of trade agreement his/her country has in effect with the United States as this may qualify the individual for an H-1B1, TN, E-1, E-2 or the E-3 nonimmigrant classifications. Additionally, employees of companies with offices both in the United States and offshore should explore the option of L-1 intracompany transfer visa. Moreover, individuals with the "extraordinary ability" in the fields of science, art, education, business or athletics may qualify for an O-1A visa while an O-1B may be appropriate for a foreign national with "extraordinary achievement" in motion pictures or TV production. Last but not the least, F-1 STEM students, on OPT, should be sure to speak to their International Student Officers (ISO) or their Designated Student Officers (DSO) about obtaining another 24 months extension in order to be able to try to get into the next H-1B cycle. It is important to reiterate and re-emphasize that students choosing to enroll in a master's degree program, with the hope of having a better chance of making it to the H-1B cap next year, should carefully choose their master's degree program since not all master's degree programs qualify an individual for the master's degree H-1B cap of additional 20,000 visas.
Not Every Master’s Degree from a United States College or University Qualifies a Foreign National for the H-1B Master’s Cap.
by Rabindra Singh
Many foreign nationals holding an F-1 nonimmigrant status in the United States, especially those who are engaged in Optional Practical Training (OPT), often intend to change their nonimmigrant status to become a professional specialty workers (H-1B workers). Most foreign nationals seeking H-1B nonimmigrant classification are subject to the 58,200 annual cap. There are an additional 20,000 H-1B visas which are reserved specifically for foreign nationals who receive a master’s degree (or a higher degree) from a United States college or university. Immigration practitioners, F-1 students, and prospective H-1B employers should note that not every master’s degree from a United States college or university qualifies a foreign national for the additional 20,000 H-1B visas under the H-1B “master’s cap”. For an individual to qualify under the master’s cap, a few criteria need to be met. Look Beyond the Nomenclature of a Degree. First, the degree must qualify as a master’s degree. To determine whether a U.S. issued degree is a master’s degree, USCIS adjudicators consider more than the simple nomenclature of a degree. The fact that degree itself is or is not titled as a master’s degree is, by itself, not dispositive. For instance attorneys typically hold a “Juris Doctor” degree (J.D.) and medical doctors hold a similar “Doctor of Medicine” degree (M.D.). Prior to earning either a J.D. or M.D. degree, the holder must first earn at least a bachelor’s degree in some particular academic field. Accordingly, while neither degree is likely equivalent to a Ph.D., a J.D. or M.D. degree would be considered to be equivalent to, if not higher than, a master’s degree. Educational Institution Must be a Public or Other Nonprofit Institution and Accredited. To qualify for the H-1B master’s cap, prospective H-1B Beneficiary must hold a master’s degree issued by a “U.S. institution of higher education” as defined by Section 101(a) of the Higher Education Act of 1965. To qualify as a “U.S. institution of higher education” as defined in section 101(a) of the Higher Education Act of 1965, the educational institution must satisfy five (5) requirements. First and foremost, the educational institute must be a public or other nonprofit institution. Second, the master’s degree issuing institution must be accredited by a nationally recognized accrediting agency or association. Moreover, the educational institution must meet following three (3) requirements: (1) the institution must admit as regular student only persons having a certificate of graduation from a school providing secondary education, or the recognized equivalent of such a certificate; (2) such an institution must be legally authorized within such state to provide a program of education beyond secondary education; and (3) the institution must provide an educational program for which the institution awards a bachelor’s degree or provides not less than a 2-year program that is acceptable for full credit toward such a degree. Illustration: Graduates Who May or May Not Qualify for the H-1B Master’s Cap. To illustrate, consider a case of two seemingly equivalent foreign students ─ one holding Master of Business Administration (MBA) degree from the DeVry University’s Keller School of Management and the other one from Thunderbird School of Global Management. Since DeVry is a for-profit private university, holding an MBA degree from the Keller School of Management will not qualify the foreign student for the Master’s H-1B cap. The second student who received an MBA from the Thunderbird School of Global Management will qualify for the Master’s H-1B cap because, even though it’s a private business school, it’s a nonprofit educational institution. However, note that the student from the Keller School of Management will still qualify for the regular H-1B cap. Conclusion. Based on the foregoing analysis, any students attending or who plan to attend a master’s or a higher degree program in the United States with the hope that the master’s degree will qualify him/her for the master’s degree H-1B cap should make two specific inquiries. First, the student needs to determine whether the educational institution is a private or a public institution. Also, the foreign student needs to determine whether the educational institution is classified as for-profit or nonprofit. Holding a master’s or a higher degree from a public educational institution will always qualify a foreign student for the H-1B master’s cap. However, when attending a private university/educational institution it is worth checking whether the educational institution is classified as a for-profit or nonprofit organization. Like public educational institutions, receiving a master’s or a higher degree from a private non-profit educational institution will qualify the foreign national for the master’s cap. However, if the private school/university is a for-profit educational institution, then having a master’s or higher degree from that institution will not meet the requirements for the H-1B master’s cap. Having said that, the student would still qualify for the regular bachelor’s H-1B cap.  Up to 6,800 visas are set aside from the annual cap of 65,000 during each fiscal year for the H-1B1 program designed specifically for the Nationals of Chile and Singapore (1,400 visas for the nationals of Chile, and 5,400 visas for the nationals of Singapore). The annual 6,800 H-1B1 numerical is counted against the H-1B numerical cap.  Master’s or higher degree (or its equivalent) from a foreign university/school does not qualify an individual for the H-1B master's cap.  Or if not so accredited, is an institution that has been granted pre-accreditation status by such an agency or association that has been recognized by the Secretary for the granting of pre-accreditation status, and the Secretary has determined that there is satisfactory assurance that the institution will meet the accreditation standards of such agency or association within a reasonable time.
CAN SUBMITTING MULTIPLE H-1B PETITIONS FOR A FOREIGN NATIONAL WILL INCREASE CHANCES OF SELECTION DURING THE LOOMING H-1B LOTTERY IN APRIL 2016?
by Rabindra Singh
As a reminder to all U.S. employers, H-1B season is almost here! United States Citizenship & Immigration Services (“USCIS”) will start accepting new H-1B petitions for fiscal year 2017 on Friday, April 1st, 2016. As the filing date rapidly approaches, prospective H-1B employers should start to identify current and future employees who will require sponsorship for new H-1B petitions. Also, H-1B employers will want to start considering a back-up plan for those H-1B candidates that do not "win the lottery." The statute provides for an annual quota of 65,000 (for beneficiaries holding a U.S. Bachelors degree or its U.S. equivalent) H-1B visas that can be issued in any given fiscal year, which runs from October 1st to September 30th. However, all H-1B nonimmigrant visas are not subject to this annual cap. Up to 6,800 visas are set aside from the cap of 65,000 during each fiscal year for the H-1B1 program designed specifically for the Nationals of Chile and Singapore. Unused numbers in the H-1B1 pool are made available for H-1B use for the next fiscal year. Thus, in effect, only 58,200 H-1B visas are granted each year plus the additional 20,000 H-1B visas which are reserved for individuals who have received a master’s degrees or higher from a U.S. college or university. In another upcoming article, we will discuss, in detail, whether or not every master’s degree from a U.S. academic institution would qualify an individual for the H-1B master’s cap. Thus, there is a total of 78,200 H-1B nonimmigrant visas which are subject to the annual cap. Last year, within the first week of filing, USCIS received nearly 233,000 H-1B petitions, including petitions filed for the advanced degree exemption. Because the annual quota was met within days of the first day of filing, on April 13, 2016, USCIS used a computer-generated random selection process, or lottery, to select enough petitions to meet the general-category cap and the 20,000 cap under the advanced degree exemption. As such, only those petitions selected in the random lottery were able to proceed to adjudication. We anticipate the same or even higher level of H-1B visa petitions for this upcoming H-1B filing season. As a result of the lottery process, many prospective H-1B employers and foreign national applicants are reaching out to our Law Office’s immigration attorneys with a variety of question about the H-1B nonimmigrant visa and the process for filing these visas. One question that we are frequently asked is “Can an employer submit multiple H-1B cap-subject petitions during one Fiscal Year? This strategy is sometimes referred to in the parlance as “multiple or duplicative H-1B visa filings." According to the USCIS guidelines, an employer may not file more than one H-1B petition for each prospective employee during the fiscal year. Therefore, a prospective employee who qualifies for the “Master’s Cap” of 20,000 cannot file two (2) petitions to encompass the regular H-1B and the Master’s H-1B. The limitation also precludes an employer from filing multiple petitions for different jobs for the same employee but does not preclude related employers (e.g., parent and subsidiary companies or affiliates) from filing petitions for the same beneficiary. However, the employer must demonstrate a legitimate business need to do so and if it fails to meet that burden, all petitions on behalf of the beneficiary will be denied or revoked. In addition, it is important for prospective H-1B employers to understand that, in some circumstances, multiple H-1B visa petition filings are permitted if the H-1B application is submitted for the same foreign national by different employers so long as there is an “authentic and actual business need” for each such petition. Since H-1B petitions are likely to be subjected to a random computerized lottery system, both H-1B employers and H-1B employees continue to share a sense of nervousness. Thus, filing of multiple applications by two different employers for a prospective H-1B employee may be beneficial but, like most things in life, one has to take the good with the bad.
WHAT H-1B EMPLOYERS NEED TO KNOW ABOUT THE LCA TO AVOID POTENTIAL DOL COMPLIANCE PITFALLS.
by Rabindra Singh
The H-1B visa program permits a United States employer (“employer”) to temporarily employ nonimmigrants to fill specialized jobs in the United States. The Immigration and Nationality Act (“INA” or “Act”) requires that an employer pay an H-1B worker the higher of the actual wage or the locally prevailing wage, in order to protect U.S. workers and their wages. Under the Act, an employer seeking to hire a foreign national in a specialty occupation on an H-1B visa must receive permission from the Department of Labor (“DOL”) before the alien may obtain an H-1B visa. The Act defines a “specialty occupation” as an occupation requiring the application of highly specialized knowledge and the attainment of a bachelor’s degree or higher. The Act requires an employer seeking permission to employ an H-1B worker to submit and receive an approved Labor Condition Application (“LCA”) from the DOL. The employer should be extremely cautious in making attestations on the LCA and complying with the regulations governing it. Knowingly and willingly furnishing any false information in the preparation of the LCA and any supporting documentation, OR even aiding, abetting, or counseling another to do so is a federal offense, punishable by fine or imprisonment up to five (5) years or both. Other penalties may also apply to the fraud or misuse of the LCA and to the perjury with respect to the ETA 9035. Where and When Should Employers Post Notice of the LCA? The notice requirement of an LCA mandates that employers post notice of their intent to hire nonimmigrant workers. An H-1B employer must provide notice of the filing of an LCA. When there is a collective bargaining representative for the occupation in which the H-1B worker will be employed, the employer must provide such notice to that collective bargaining representative via a copy of the LCA or other document which contains all the required information. When there is no bargaining representative, the employer must provide such notice in one of the two following manners. A hard copy notice of the filing of the LCA must be posted in two conspicuous locations at each place of employment where any H-1B nonimmigrant will be employed (whether such place of employment is owned or operated by the employer or by some other person or entity). Alternatively, the electronic notice of the filing of the LCA may be posted by providing electronic notification to employees in the occupational classification (including both employees of the H-1B employer and employees of another person or entity which owns or operates the place of employment) for which H-1B nonimmigrants are sought, at each place of employment where any H-1B nonimmigrant will be employed. Further, the H-1B employer is required to post notice on or within 30 days before the date the labor condition application is filed and should remain posted for a total of 10 days. In situations involving H-1B workers working at end-site users (third party placements), it is the duty of an H-1B employers to post the notice of filing of the LCA at the secondary sites. Even if the H-1B employer makes good faith attempt to post notice but the end-site user refuses to post notice at its worksite, the H-1B employer may be found to have substantially and willfully violated the law. The end-site users have no obligation under the Act to post the notice. Additionally, the posting requirement mandates that employers note and retain the dates when, and locations where, the notice was posted and to retain a copy of the posted notice. Additional Obligations for H-1B Dependent Employers and Willful Violators. An employer is considered H-1B-dependent if it has: 25 or fewer full-time equivalent employees and at least eight (8) H-1B nonimmigrant workers; or 26 - 50 full-time equivalent employees and at least 13 H-1B nonimmigrant workers; or 51 or more full-time equivalent employees of whom15 percent (%) or more are H-1B nonimmigrant workers. An employer whose dependency is not readily apparent or is on the borderline may use the “snap-shot” test. The snap-shot test requires a comparison of the total number of all H-1B workers to the number of the total workforce (including H-1B workers). If a small employer’s snap-shot calculation shows that the employer is dependent, the employer must then fully calculate its dependency status. If a large employer’s calculation exceeds 15 percent of its workforce, that employer must fully calculate its dependency status. The employer is a willful violator if the employer has been found at any time during the past five (5) years preceding the date of the application (and after October 20, 1998) to have committed a willful violation or a misrepresentation of a material fact (two of the Labor Condition Application (LCA) attestations). A willful violator employer must comply with additional attestations under any LCA it files within five (5) years of the finding of a willful violation. The only exception is when an LCA is filed for and used exclusively for exempt H-1B workers. H-1B-dependent employers and/or willful violators must attest that they have not displaced a U.S. worker[i] at the time of filing an H-1B visa petition. Additionally, H-1B dependent employers and/or willful violators are required to make displacement inquiries. Displacement inquiry is an obligation of the H-1B dependent employers and/or willful violators when they desire to place an H-1B nonimmigrant with another/secondary employer where there are indicia of an employment relationship. Further, such employers must attest that they have taken good faith steps to recruit U.S. workers, and that the employer offered the job to any equally or better qualified U.S. worker who applied for the job for which the H-1B worker is sought. An Employer’s Duty to Keep Records of Wages Paid to H-1B Employees. The Act provides that the LCA, filed by the employer with the DOL, must include a statement to the effect that the employer is offering to an alien status as an H-1B nonimmigrant, that wages for H-1B visa holders are at least equal to the actual wage level paid by the employer to all other individuals with similar experience and qualifications for the specific employment in question, or the prevailing wage level for the occupational classification in the area of employment, whichever is higher, based on the best information available at the time of filing the application. Decades back while addressing a claim brought under the Fair Labor Standards Act, the United States Supreme Court in a landmark decision[ii] held that once an employee shows that he has performed work and was not properly paid for it, and he produces sufficient evidence of the amount and extent of work as a matter of just and reasonable inference, the burden shifts to the employer to produce evidence of the precise amount of work that was performed or evidence to negate the inference created by the employee’s evidence. The Court explained that it is the employer’s duty to keep precise records and that such a burden should not fall on the employee and bar the employee from recovery when such records cannot be produced. Thus, acting on the sufficient evidence produced by the employee, if the Administrator of the Wage and Hour Division (WHD) establishes that the employer has failed to properly compensate the H-1B nonimmigrant worker then the employer bears the burden of establishing the existence of circumstances that warrant the wages not being paid or benefits not being offered, by a preponderance of the evidence. Failure to do would result in the employer being held liable for the payment of back wages and other financial remedies. Back Pay Liability Not Subject to One-Year Statute of Limitation. DOL accepts complaints by aggrieved persons or organizations or through its own initiated investigation relating to misrepresentation or failure of the employer to meet the conditions stated in the LCA. An aggrieved employee has 12 months after the latest date on which the alleged violations were committed to file a complaint with DOL; however, this Statute of Limitation does not apply to employer’s back pay liability. If the employer fails to pay an H-1B worker the “required wage,” it can be ordered to pay back pay or make up the deficiency. The regulations require the WHD Administrator to determine whether an employer has the proper documentation to support its wage attestation. The Administrator may contact the Employment and Training Administration (ETA), a part of DOL, to get the prevailing wage. The regulation is permissive, and the ETA’s determination is merely an option that Administrator can use in its investigation. If in case the employer fails to support through proper documentation how it arrived at the prevailing wage level, the Administrator can use the employer’s Letter of Support and I-129 forms submitted to the United States and Citizenship Services (USCIS) for the approval of H-1B petition in determining whether the employee was appropriately classified at the specific wage level. The back pay obligation is not subject to the statute of limitations and the employer could be held liable for as long as the worker continues to receive less than the law requires. The Administrative Review Board in a decision pertaining to the Immigration Nursing Relief Act of 1989 stated, in pertinent part, that: “…“Statute of limitations” is the term referring to statutes prescribing the time beyond which a plaintiff may not bring a cause of action; generally, a fixed time period within which a lawsuit must be brought after a cause of action accrues. . . . “The purpose of such statutes is to keep stale litigation out of the courts. They are aimed at lawsuits, not at the consideration of particular issues in lawsuits.” …It is not unusual for federal statutes to impose different time limits for filing a complaint and for calculation (of) back pay.” Civil Money Penalties for H-1B Violations and Debarment for Non-Compliance. The WHD Administrator may assess Civil Money Penalties (CMPs) not to exceed $5,000 per violation for a willful violation pertaining to wages. The Administrator may also assess a penalty not to exceed $1,000 per violation for displacement of U.S. workers, a substantial violation pertaining to notification, labor condition application specificity, recruitment of U.S. workers, or a misrepresentation of any material fact on the LCA. The regulations require the Administrator to consider seven factors for the assessment of CMPs: (1) Previous history of violation, or violations, by the employer; (2) The number of workers affected by the violation or violations; (3) The gravity of the violation or violations; (4) Efforts made by the employer in good faith to comply with the provisions of the law and regulations; (5) The employer’s explanation of the violation or violations; (6) The employer’s commitment to future compliance; and (7) The extent to which the employer achieved a financial gain due to the violation, or the potential financial loss, potential injury or adverse effect with respect to other parties. Moreover, the regulations state that an employer that willfully fails to pay wages shall be debarred for a period of at least 2 years. Further, a substantial failure to provide notice may result in a one year debarment. Additionally, an H-1B dependent employer’s failure to make displacement inquiry may result in one-year debarment. Last but not the least, an H-1B employer’s ignorance of the INA’s requirements or contention that non-compliance was due to an attorney or an employee will not excuse non-compliance. [i] during the period beginning 90 days before and extending to 90 days after the placement of the H-1B worker. [ii] Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946).
UPDATE: EADS & ACCEPTING JOB PROMOTIONS POST I-140 APPROVAL IS SOON GOING TO BE A REALITY.
by Rabindra Singh
In August 2015, I had indicated through one of my Posts, KEEP HOPES ALIVE: EADS & ACCEPTING JOB PROMOTIONS AFTER I-140 APPROVAL IS SOON GOING TO BE A REALITY, that the Department of Homeland Security (DHS) is working on a proposed rule that will allow certain Beneficiaries of an approved Immigrant Petition for Alien Worker (Form I-140) to obtain an Employment Authorization Document (EAD), and also permit them to engage in natural career advancements by accepting job promotions. I had also projected that the proposed rule, or Notice of Proposed Rule Making (NPRM) was likely to be released during the First Quarter of DHS’ New Fiscal Year, which commenced on October 1st, 2015. As projected earlier, allowing minor deviations, it is highly likely that the proposed rule or NPRM is going to be published in the Federal Register for Notice and Comment in next 60 to 90 days. This next level of projection is based on two specific developments. First, on November 5th, 2015, providing an update on the implementation of President Obama’s Executive Action announced last year, DHS Secretary, Jeh Johnson, during USCIS’ Ombudsman Fifth (5th ) Annual Conference in Washington, D.C., confirmed that the “DHS is working on a proposed regulation and guidance to support high-skilled businesses and workers by enabling these businesses to hire and retain talented foreign workers while providing these workers with increased flexibility to advance with current employers or seek new opportunities elsewhere.” In addition, the submission of a proposed draft rule: “Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting Highly-Skilled H-1B Alien Workers”, on November 19th, 2015, by the DHS/USCIS to the Office of Information and Regulatory Affairs (OIRA) for review confirms the above-stated projection. As many are aware, OIRA is a part of the Office of Management and Budget (OMB) within the Executive Office of the President. OIRA is the United States Government’s central authority for the review of Executive Branch regulations. Because the proposed rule is categorized as a “Major Rule” and prioritized as “Other Significant”, OIRA also need to review the costs and benefits associated with the proposed rule, along with considering other alternative benefits and policy issues. It can deciphered through the “Title ” and the analysis of the “Statement of Need” and “Summary of Legal Basis” that the broad framework of the proposed rule will encompass what was stated by Secretary Johnson in his November 20th, 2014, Memorandum; and the Regulatory Agenda published by DHS earlier. The proposed rule is also likely to include the recommendations regarding employment-based visa issuance contained in the White House report, Modernizing and Streamlining Our Legal Immigration System for the 21st Century, released earlier in July 2015. Note, however, that the proposed rule only refers to Highly-Skilled H-1B Alien Workers. As many will recall, through his November 2014 Memorandum, Secretary Johnson specifically directed the USCIS Director to: “…[C]arefully consider other regulatory or policy changes to better assist and provide stability to the beneficiaries of approved employment-based immigrant visa petitions. Specifically, USCIS should consider amending its regulations to ensure that approved, long-standing visa petitions remain valid in certain cases where they seek to change jobs or employers.” [emphasis supplied] After waiting for six (6) months, the generic and fluid wordings in Secretary Johnson’s Memorandum became somewhat crystallized when the “Employment-Based Immigration Modernization” proposed rulemaking was added to the DHS’ Regulatory Agenda. The Regulatory Agenda stated that the DHS is now proposing to allow beneficiaries of certain approved I-140 Petitions to obtain work authorization, clarify portability, and provide relief to certain workers facing lengthy adjustment delays. Specifically, the Regulatory Agenda stated that: “The Department of Homeland Security (DHS) is proposing to modernize the immigrant visa system by amending its regulations governing the adjustment of status process and employment-based immigration. Through this rule, DHS proposes to allow “certain” approved Immigrant Petition for Alien Worker (Form 1-140) beneficiaries to obtain work authorization, clarify the meaning of portable work authorization, and remove unnecessary restrictions on the ability to change jobs or progress in careers, as well as provide relief to workers facing lengthy adjustment delays. Fast forward to July 2015, White House released a report, Modernizing and Streamlining Our Legal Immigration System for the 21st Century. This Report included a snapshot of new actions that the federal agencies will be taking to improve the visa experience for families, workers, employers, and people in need of humanitarian relief. Among other things, this White House Report laid down the recommendations regarding employment-based visa issuance. Although, the Report did not lay down all the specifics, it added another layer of hope by specifically stating that the DHS intends to publish a regulation which would allow foreign workers waiting for Green Cards to change jobs and receive promotions by clarifying the meaning of “same or similar” to the job that was the original basis for permanent employment. Further, the report clarified that the proposed rule would enable individuals whose employment-sponsored immigrant visa petitions have been approved for more than a year to “retain” eligibility for LPR (Green Card) status despite the petitioning employer closing its business or seeking to withdraw the approved petition. Thus, based on the limited preview of the proposed rule currently available, in all probability, it will allow “certain” Beneficiaries, who are in a valid H-1B nonimmigrant status, and who have an approved Form 1-140 to obtain an EAD. This rule will also provide for removing the unnecessary restrictions on the ability to change jobs or accept promotions. It is also expected that the USCIS will amend its regulations to ensure that approved, long-standing visa petitions remain valid in certain cases where Beneficiaries seek to change jobs or employers. Specifically, the proposed rule is expected to enable individuals whose employment-sponsored immigrant visa petitions have been approved for more than a year to “retain” eligibility for LPR (Green Card) status despite the petitioning employer closing its business or seeking to withdraw the approved I-140 petition. Thus, if proposed and implemented, the foreign-born workers, who had an I-140 petition approved for more than a year, will not be forced to start the employment-based Green Card petition all over again after making a job switch from the Green Card sponsoring employer to another employer. In simple terms, having an I-140 petition approved for more than a year will allow the foreign-born workers in the U.S. to completely escape the time-intensive and employer-dependent Labor Certification process, and the submission of Form I-140 again to USCIS in case they decide to move on from the Green Card sponsoring employer to another employer in the United States. Of course, it is always difficult to look into the crystal ball. However, given the information that has been provided to the public, and based on the recent developments, it continues to be my hope that individuals who have waited many years to be able to have their Green Cards will soon be afforded the opportunity to take advantage of job flexibility and accepting job promotions.
MEHTA V. DEPT. OF STATE: WHY PLAINTIFFS FAILED IN OBTAINING INJUNCTIVE RELIEF IN THE CLASS ACTION COMPLAINT?
by Rabindra Singh
As previously projected in my recent blog posting, MEHTA V. DEPT. OF STATE: WILL PLAINTIFFS BE SUCCESSFUL IN OBTAINING THE INJUNCTIVE RELIEF IN THE CLASS ACTION COMPLAINT?, the United States District Court for the Western District of Washington at Seattle on October 7, 2015, denied the Motion for Injunctive Relief (Temporary Restraining Order) by a group of high-skilled immigrants that would have forced the Department of Homeland Security (“DHS”) to accept Adjustment of Status Applications (“AOS”) as per the “Filing Date” chart contained in the originally issued October 2015 Visa Bulletin by the Department of State (“DOS”). Without wasting too much ink (and time) discussing how the October 2015 Visa Bulletin was transformed by the DOS (when it was originally released on September 9th, 2015), and how the Priority Dates were revised only four (4) days before its effective date, this supplementary blog posting seeks to analyze the very important question of why the Plaintiffs in the Class Action Complaint failed to prove “Irreparable Harm” in obtaining the Injunctive Relief (TRO) from the United States District Court in Seattle. Injunctive Relief consists of a special court order called an “injunction” which is a form of equitable relief, requiring an individual to do or not do a specific action. Because it is an extraordinary remedy, the courts utilize the injunction (or other equitable relief) in special cases where the preservation of the status quo (or taking some specific action) is required in order to prevent a possible injustice. So what needs to be proved by a plaintiff in order to obtain Injunctive Relief? Federal Court rules set forth four (4) criteria that must be satisfied before an interlocutory or preliminary injunction can be issued: (1) likelihood of “success on the merits”; (2) potential for “irreparable harm” in the absence of an injunction; (3) “balance of the equities” or, said another way, harm to the plaintiff if the injunction is not granted versus harm to the defendant if the injunction is granted; and (4) public policy considerations. Each of these criteria must be satisfied. I stated in my previous blog posting that: “Even assuming that the Plaintiff in the Class Action Complaint will be able to prove the likelihood of success on the merits, proving Irreparable Harm will likely be the toughest requirement for the Plaintiffs to satisfy in order to obtain Injunctive Relief. That brings us to the next question, why? “Irreparable harm” is defined as an injury that cannot adequately be compensated for by a monetary payment. This could be for two reasons: (1) the harm could not be measured well enough to pick a price or value; or (2) the harm might be of a kind for which money was not a socially acceptable payment. The first one can be referred as “immeasurability” and the second one as “incommensurability”. Further, in order to obtain Injunctive Relief the Plaintiffs must also show that the harm is imminent and that the nature of the expected harm is such that an award of money damages against the Respondent, at a later date, will not make the Petitioner whole. The biggest obstacle to satisfying this requirement is that the courts often conclude that money damages are sufficient to make a Petitioner whole. As projected earlier, and as confirmed by the Court that the “Plaintiffs have a slight chance of obtaining the Injunctive Relief”, the United States District Court held that the Plaintiff failed to meet their burden of this element. Before further analyzing why Plaintiffs failed to obtain Injunctive Relief, as set forth in my prior blog posting, let us pause a bit and analyze this through the testimony of J.K. Rowling when she had sued the author of the “Harry Porter Lexicon.” In her testimony, Ms. Rowling stated that the publication of the lexicon would destroy her “will or heart to continue with writing” a Harry Potter encyclopedia of her own. She did not testify that absent an injunction she would not write her own encyclopedia because the defendant would have undercut her market and she would earn nothing from her work, even though she had plenty of money already. Thus, basing an argument for Injunctive Relief primarily on compensatory or money damages does not win the day in Court. Let’s analyze why proving Irreparable Harm became an uphill battle for the Plaintiffs in the Class Action Complaint for obtaining the Injunctive Relief. To begin, first and foremost it is important to revisit the first Preliminary Statement of the Class Action Complaint that was filed. Further, it is also important to analyze Paragraph 9, and the Portion, Parties, of the Compliant which explained in detail the financial hardships suffered by each Plaintiff in preparing his/her AOS Application. The preliminary statement categorically stated that: “This case is about what happens when thousands of law-abiding, highly skilled immigrants spend millions of dollars preparing to apply for green cards in reasonable reliance on an agency’s binding policy statement, only to find out at the last minute that a hapless federal bureaucracy has abruptly, inexplicably, and arbitrarily reneged on its promise.” Further, Paragraph 9 of the Amended Complaint specifically states that: “In the absence of such relief, Plaintiffs and class members, who have spent thousands of hours and millions of dollars preparing adjustment applications in reasonable reliance on the binding agency policy statements DOS published, will be irreparably harmed and left without any remedy for Defendants’ unlawful actions.” Analysis of the preliminary statement, Paragraph 9 and then the portion of the Lawsuit that explained the various expenses incurred by Plaintiffs in preparing AOS applications resulted in a basic argument: “Not maintaining the status quo as was then proposed in the originally issued October 2015 visa bulletin will result in Irreparable Harm, among others.” As predicted, because the argument was couched in monetary (compensatory) terms, it became an uphill battle for the Plaintiff’s Attorneys to prove “Irreparable Harm” in obtaining the Injunctive Relief. Finding holes in the Plaintiff’s argument and agreeing with the Defendant, the Court stated that: “Considering the failure of Plaintiff to provide any citation to its claims of harm, the fact that most if not all of the harm cited has already occurred, and the apparent reparability of Plaintiffs economic damages should they ultimately prevail at trial, the Court finds that Plaintiffs fail to meet their burden on this element.” Taking lesson from the R.K. Rowling example above, and as hinted in the Order denying the Motion, had the argument been premised on non-monetary (non-compensatory) terms such as losing the “Security”, “ Stability”, and/or “Freedom” which was contained in the originally issued Visa Bulletin, the Plaintiffs would likely have a better chance of success in proving “Irreparable Harm”. In this context, it is important to quote the excerpts from The White House announcement that was made in July 2015, after an extensive inter-agency coordination and consultation: “Later this year, State, in consultation with DHS, will revise the monthly Visa Bulletin to better estimate immigrant visa availability for prospective applicants, providing needed predictability to nonimmigrant workers seeking permanent residency. The revisions will help ensure that the maximum number of available visas is issued every year, while also minimizing the potential for visa retrogression. These changes will further allow more individuals seeking LPR status to work, change jobs, and accept promotions. By increasing efficiency in visa issuance, individuals and their families who are already on a path to becoming LPRs will have increased security that they can stay in the United States, set down roots, and more confidently seek out opportunities to build lives in our country.” Although the Class Action Complaint quoted the above-mentioned White House statement and emphasized certain portions, it failed to capitalize on this and other similar announcements and memoranda issued by the Department of Homeland Security (DHS) and the President. In spite of detailing and focusing on the financial hardships suffered by individual Plaintiffs, the Class Action Complaint should have primarily and predominately focused on the “Loss of Security, Stability, and/or Freedom” that tens of thousands of immigrants pursuing employment-based Green Card will now face by not knowing: (1) when they could freely travel to their home countries to meet their parents and family members; (2) when they could leave the shadows of their employers and go out on their own to start their own entrepreneurial ventures; and (3) when they could be forced to depart the United States upon getting fired or laid-off while in nonimmigrant status, etc. Further, the Plaintiffs in the case should also have argued that such loss of Security, Stability, and/or Freedom cannot (and should not) be measured and compensated in terms of a money value, and therefore, such loss amounts to nothing less than “Irreparable Harm”.  For instance money damages are not being treated being sufficient where market share will be permanently lost absent an injunction; where a trade secret will become known to competitors or the general public absent an injunction; or where a person may be permanently physically injured absent an injunction.  Likelihood of Irreparable Harm.  Novelist best known as the author of the Harry Potter fantasy series.  While discussing Irreparable Harm, the District Court noted that: ….Plaintiffs also argue, again without citation, that “at least one Plaintiff whose parent is currently suffering from cancer in China, will be unable to take advantage of the benefits conferred by accepting adjustment applications...”  And based on approximately 1,650 responses received pursuant to the Request for Information published in the Federal Register.
MEHTA V. DEPT. OF STATE: WILL PLAINTIFFS BE SUCCESSFUL IN OBTAINING THE INJUNCTIVE RELIEF IN THE CLASS ACTION COMPLAINT?
by Rabindra Singh
Without wasting too much ink (and time) discussing how the October 2015 Visa Bulletin was transformed by the Department of State (DOS) when it was originally released on September 9th, 2015, and how the Priority Dates (PD) were revised only four (4) days before its effective date, this article seeks to analyze the very important question of whether the Plaintiffs in the Class Action Lawsuit can obtain Injunctive Relief from the United States District Court for the Western District of Washington in Seattle. Injunctive Relief consists of a special court order called an "injunction" which is a form of equitable relief, requiring an individual to do or not do a specific action. Because it is an extraordinary remedy, the courts utilize the injunction (or other equitable relief) in special cases where the preservation of the status quo (or taking some specific action) is required in order to prevent a possible injustice. So what needs to be proved by a plaintiff in order to for obtain Injunctive Relief? Federal court rules set forth four (4) criteria that must be satisfied before an interlocutory or preliminary injunction can be issued: (1) likelihood of “success on the merits”; (2) potential for “irreparable harm” in the absence of an injunction; (3) “balance of the equities” or, said another way, harm to the plaintiff if the injunction is not granted versus harm to the defendant if the injunction is granted; and (4) public policy considerations. Each of these criteria must be satisfied. Even assuming that the Plaintiff in the Class Action Complaint will be able to prove the likelihood of success on the merits, proving Irreparable Harm will likely be the toughest requirement for the Plaintiffs to satisfy in order to obtain Injunctive Relief. That brings us to the next question, why? “Irreparable harm” is defined as an injury that cannot adequately be compensated for by a monetary payment. This could be for two reasons: (1) the harm could not be measured well enough to pick a price or value; or (2) the harm might be of a kind for which money was not a socially acceptable payment. The first one can be referred as “immeasurability” and the second one as “incommensurability”. Further, in order to obtain Injunctive Relief the Plaintiffs must also show that the harm is imminent and that the nature of the expected harm is such that an award of money damages against the Respondent, at a later date, will not make the Petitioner whole. The biggest obstacle to satisfying this requirement is that the courts often conclude that money damages are sufficient to make a Petitioner whole. Before we discuss, why the Plaintiffs have a slight chance to obtain Injunctive Relief, let’s pause for a bit and analyze this through the testimony of J.K. Rowling when she had sued the author of the “Harry Porter Lexicon.” In her testimony, Ms. Rowling stated that the publication of the lexicon would destroy her “will or heart to continue with writing” a Harry Potter encyclopedia of her own. She did not testify that absent an injunction she would not write her own encyclopedia because the defendant would have undercut her market and she would earn nothing from her work, even though she had plenty of money already. Thus, basing an argument for Injunctive Relief primarily on money damages will not win the day in Court. Let’s analyze why proving Irreparable Harm would be an uphill battle for the Plaintiffs in the Class Action Complaint for obtaining the Injunctive Relief. To begin, first and foremost it is worth noting the first Preliminary Statement of the Class Action Lawsuit that was filed, Paragraph 9, and the Portion, Parties, which endeavors to explain the financial hardships suffered by each Plaintiff who prepared to submit the Adjustment of Status (AOS) Application. The preliminary statement categorically states that: “This case is about what happens when thousands of law-abiding, highly skilled immigrants spend millions of dollars preparing to apply for green cards in reasonable reliance on an agency’s binding policy statement, only to find out at the last minute that a hapless federal bureaucracy has abruptly, inexplicably, and arbitrarily reneged on its promise.” Further, Paragraph 9 of the Amended Complaint specifically states that: “In the absence of such relief, Plaintiffs and class members, who have spent thousands of hours and millions of dollars preparing adjustment applications in reasonable reliance on the binding agency policy statements DOS published, will be irreparably harmed and left without any remedy for Defendants’ unlawful actions.” Analysis of the preliminary statement, Paragraph 9 and then the portion of the Lawsuit that explains the various expenses incurred by Plaintiffs in preparing AOS applications results in a basic argument: “Not maintaining the status quo as was then proposed in the originally issued October 2015 visa bulletin will result in Irreparable Harm, among others.” Because the argument is couched in monetary (compensatory) terms, it will be an uphill battle for the Plaintiff’s Attorneys to prove “Irreparable Harm” to obtain the Injunctive Relief. Taking lesson from the R.K. Rowling example above, had the argument been premised on losing the “Security” which was contained in the originally issued Visa Bulletin, the plaintiffs would likely have a better chance of success in proving “Irreparable Harm”. In this context, it is important to quote the excerpts from white House announcement that was made in July 2015, after an extensive inter-agency coordination and consultation: “Later this year, State, in consultation with DHS, will revise the monthly Visa Bulletin to better estimate immigrant visa availability for prospective applicants, providing needed predictability to nonimmigrant workers seeking permanent residency. The revisions will help ensure that the maximum number of available visas is issued every year, while also minimizing the potential for visa retrogression. These changes will further allow more individuals seeking LPR status to work, change jobs, and accept promotions. By increasing efficiency in visa issuance, individuals and their families who are already on a path to becoming LPRs will have increased security that they can stay in the United States, set down roots, and more confidently seek out opportunities to build lives in our country.” Although the Class Action Complaint quoted the above-mentioned White House statement and emphasized certain portions, it failed to capitalize on this and other similar announcements and memoranda issued by the Department of Homeland Security (DHS) and the President. In spite of detailing the financial hardships of the individual Plaintiffs, the lawsuit should have primarily and predominately focused on the “Loss of Security” that tens of thousands of immigrants pursuing employment-based Green Card would face by not knowing: (1) when they could freely travel to their home countries to meet their parents and family members; (2) when they could leave the shadows of their employers and go out on their own to start their own entrepreneurial ventures; and (3) when they could be forced to depart the United States upon getting fired or laid-off while in nonimmigrant status, etc. Further, the Plaintiffs could also have argued that such a loss of security cannot and should not be measured and compensated in terms of a money value, and, thus such loss amounts to “Irreparable Harm”.  For instance money damages are not being treated being sufficient where market share will be permanently lost absent an injunction; where a trade secret will become known to competitors or the general public absent an injunction; or where a person may be permanently physically injured absent an injunction.  novelist best known as the author of the Harry Potter fantasy series.  and based on approximately 1,650 responses received pursuant to the Request for Information published in the Federal Register.
KEEP HOPES ALIVE: EADS & ACCEPTING JOB PROMOTIONS AFTER I-140 APPROVAL IS SOON GOING TO BE A REALITY.
by Rabindra Singh
Introduction. Acknowledging the need of the U.S. businesses to hire and retain highly-skilled foreign-born U.S. workers, especially from India and China, who remain stuck with the same employer for years in order to obtain an employment-based green card, the Department of Homeland Security (DHS) is working on a proposed rule that will allow certain beneficiaries of an approved Immigrant Petition for Alien Worker (Form I-140) to obtain an Employment Authorization Document (EAD), and to engage in natural career advancements. DHS is expected to release the proposed rule during the first quarter of its New Fiscal Year starting on October 1, 2015. Sources of Prediction. A glimpse of this proposed rule was alluded to in the Memorandum released by the DHS Director, Jeh Johnson, to United States and Citizenship Services (USCIS) Director, Leon Rodriguez, following the President Obama’s announcement of executive action on November 20, 2014. Taking into consideration that the employment-based immigration system is afflicted with extremely long wait for green cards due to relatively low green card numerical limits established by Congress 25 years ago, the Memorandum directed the USCIS Director to take several steps to modernize and improve the immigrant visa process. Among other things, the Memorandum specifically directed the USCIS Director to: “…[C]arefully consider other regulatory or policy changes to better assist and provide stability to the beneficiaries of approved employment-based immigrant visa petitions. Specifically, USCIS should consider amending its regulations to ensure that approved, long-standing visa petitions remain valid in certain cases where they seek to change jobs or employers.” [emphasis supplied] Though Mr. Johnson’s Memorandum built upon the hope created by President’s announcement(s), it lacked the specificity and clarity as to what kind of regulation and/or policy changes USCIS should implement; when the regulations and/or policy changes would be implemented; how the terms such as “long-standing” and “certain cases” are going to defined, etc. After waiting for six (6) months, the generic and fluid wordings in Jeh Johnson’s Memorandum became somewhat crystallized when the “Employment-Based Immigration Modernization” proposed rulemaking was added to the DHS’ regulatory agenda. The regulatory agenda stated that the DHS is proposing to allow beneficiaries of certain approved I-140 Petitions to obtain work authorization, clarify portability, and provide relief to workers facing lengthy adjustment delays. Specifically, the regulatory agenda states that: “The Department of Homeland Security (DHS) is proposing to modernize the immigrant visa system by amending its regulations governing the adjustment of status process and employment-based immigration. Through this rule, DHS proposes to allow “certain” approved Immigrant Petition for Alien Worker (Form 1-140) beneficiaries to obtain work authorization, clarify the meaning of portable work authorization, and remove unnecessary restrictions on the ability to change jobs or progress in careers, as well as provide relief to workers facing lengthy adjustment delays. [emphasis supplied] As soon as the DHS regulatory agenda was published, the chat rooms discussing the anticipated proposed rulemaking were flooded with comments. Indian and Chinese foreign-born workers in the United States, who have been waiting for years (and some for decades), began speculating about when USCIS will publish the much awaited proposed rule, how much time it will take for the proposed rule to become effective, who will qualify under certain approved Immigrant Petition for Alien Worker (Form 1-140), etc. Fast forward to July 2015, the White House released a report, Modernizing and Streamlining Our Legal Immigration System for the 21st Century, which included a snapshot of new actions that the federal agencies will be taking to improve the visa experience for families, workers, employers, and people in need of humanitarian relief. Among other things, this report laid down the recommendations regarding employment-based visa issuance. Although, this report did not lay down all the specifics, it added another layer of hope by specifically stating that the “DHS intends to publish a regulation” which would allow foreign workers waiting for green cards to change jobs and receive promotions by clarifying the meaning of “same or similar” to the job that was the original basis for permanent employment. Further, the report clarified that the proposed rule would enable individuals whose employment-sponsored immigrant visa petitions have been approved for more than a year to “retain” eligibility for LPR (Green Card) status despite the petitioning employer closing its business or seeking to withdraw the approved petition. Deciphering the Developments & Future Predictions. Based on the developments so far, it is safe to predict that DHS, most likely in the first quarter of its New Fiscal Year, starting on October 1, 2015, will announce a proposed rule that will enable certain foreign nationals, specifically those having an I-140 Petitions approved for more than a year, to obtain work authorization. Also, it is not out of the line to predict that the proposed regulation will likely allow foreign-born workers waiting for employment-based green cards to change jobs and receive promotions by defining the term “same or similar” post I-140 Petition approval stage. Thus, the flexibility of changing jobs provided to the foreign workers post submission, and wait of 180 days, of Adjustment of Status Applications (Form I-485) under the American Competitiveness in the Twenty-First Century Act (AC-21) is likely to be expanded and conferred upon those beneficiaries whose I-140 Petition remained approved for more than a year. Last but not the least, it could also be the case that if proposed and implemented, the foreign-born workers, who had an I-140 petition approved for more than a year, will not be forced to start the employment-based green card petition all over again after making a job switch from the employer who had sponsored him/her for the green card to another employer. In simple terms, having an I-140 petition approved for more than a year will allow the foreign-born workers in the United States to completely escape the time-intensive and employer-dependent Labor Certification process, and the submission of I-140 Petition without losing their spot in the green card line. Of course, it is always difficult to look into the crystal ball and see the future. However, given the information that has been provided to the public with regard to these initiatives, it continues to be my hope that individuals who have waited many years to be able to have their green cards will be afforded the opportunity to take advantage of job flexibility.
New CIS Policy Memo Provides “Lasting Relief” to Some Special Immigrant Religious Workers.
by Rabindra Singh
United States and Citizenship Services (CIS), agreeing with the U.S. Court of Appeals for the Third Circuit decision in Shalom Pentecostal Church v. Acting Secretary DHS that its 2008 regulation was ultra vires, released a new policy memorandum (memo) stating that it will no longer require that the qualifying religious work experience for the 2-year period preceding submission of a Form I-360 special immigrant religious worker petition be acquired in lawful immigration status if gained in the United States. As many are aware, the Immigration and Nationality Act (INA) enables an immigrant to obtain a visa as a “special immigrant religious worker” if the immigrant meets certain statutory criteria, including that s/he has been “carrying on” religious work for at least the two (2) years preceding the filing of the visa petition. The Shalom Pentecostal case presented the issue of whether a requirement imposed by the relevant regulations that the religious work experience gained “in lawful immigration status” crosses the line from permissible statutory interpretation by the responsible agency to ultra vires regulation contrary to the clear intent of Congress. To better understand, it is helpful to know the pertinent facts of Shalom Pentecostal case. Appellee, Carlos Alencar (Mr. Alencar), a Brazilian national, travelled with his family to the United States on a tourist visa in June 1995. Mr. Alencar was authorized to stay in the United States until December 1995, but he remained in the United States unlawfully beyond this authorized period. Later, Mr. Alencar sought legal immigration status as a special immigrant religious worker since 1997. That petition, and a second petition filed by Mr. Alencar in 2001 were both rejected by CIS. Nonetheless, Alencar began working as a senior pastor for the Shalom Pentecostal Church in 1998. In 2009, Shalom Pentecostal Church submitted an I-360 petition on behalf of Mr. Alencar. CIS again denied the petition and, in this instance, did so on the sole ground that the Church had failed to establish, pursuant to the 2008 regulation, 8 C.F.R. 204.5(m)(4) and (11), that Mr. Alencar had been “performing full-time work in lawful immigration status as a religious worker for at least the two-year period immediately preceding the filing of the petition. Agreeing with the District Court decision, the Third Circuit Court of Appeals in Shalom Pentecostal found that the lawful status requirements in 8 CFR 204.5(m)(4) and (11) are ultra vires in that the statute is clear and unambiguous and the regulation is inconsistent with the statute. The court also found the lawful status requirements to impermissibly conflict with section 245(k) of the INA which states that certain aliens may work without authorization for up to 180 days and still remain eligible for an adjustment of status. Similarly, section 245(i) of the INA allows certain immigrants to adjust status despite having worked without authorized status. The Third Circuit found that the lawful status requirements impermissibly render special immigrant religious workers who may be otherwise eligible for adjustment of status under section 245 of the INA ineligible because such workers cannot obtain the approved Form 1-360, Petition for Amerasian, Widow(er), or Special Immigrant, needed to qualify for an adjustment of status. So, does that means that anyone who submitted, on his own or through his employer, a Form I-360 special immigrant religious worker petition would be able to adjust status in the United States even if s/he acquired the relevant experience in an unlawful status provided the special immigrant religious worker meets all other regulatory requirements. The short answer is “No.” However, certain special immigrant religious worker(s) could derive lasting relief. In order to become a Legal Permanent Resident (LPR) through the special immigrant religious worker program, an alien or his prospective employer must complete two steps. First, the applicant must successfully petition CIS using Form I-360. Upon approval of I-360 petition, the alien may apply for adjustment of status in the United States or apply for an immigrant visa using Consular processing if outside the United States. The new CIS memo only helps in successfully completing the first step of the two-step process for those special immigrant religious worker(s) who gained the qualifying relevant work experience in an unlawful status in the United States. It will not help in crossing the second hurdle, of adjusting status in the United States, to become an LPR unless the applicant is the beneficiary of Section 245(i) of the INA. As stated in the memo, special immigrant religious workers whose qualifying work experience was not obtained in lawful immigration status may be ineligible to adjust status under the requirements set forth in section 245 of the INA. Such workers may also be subject to the 3- or 10-year bars to admission under section 212(a)(9)(B)(i) of the INA if they seek to reenter the United States after being unlawfully present for a period of more than 180 days. To summarize, although the new CIS memo will only help such special immigrant religious workers who gained qualifying relevant work experience in an unlawful status in the United States by obtaining approval of their Form I-360 special immigrant religious worker petition; it will not help them in adjusting status in the United States to become an LPR. However, certain special immigrant religious workers may combine the relief emanating from the memo and utilize it with the relief contained in INA 245(i) to obtain a lasting relief from CIS by being able to adjust status in the United States to that of an LPR.  783 F.3d 156 (3d Cir. 2015).  Under INA 245(i), an alien, (a) who is physically present in the U.S. and (b) who entered without inspection, who is in unlawful immigration status, who fails to maintain status or who has accepted unauthorized employment, may adjust status if: (1) the alien is the beneficiary of an immigrant petition or application for labor certification filed on or before April 30, 2001; (2) the immigrant petition or labor certification application was properly filed and approvable when filed; and (3) the alien was physically present in the U.S. on December 21, 2000 if the qualifying immigrant petition or labor certification application was filed after January 14, 1998.
As discussed in my recently co-authored Article, H-1B AMENDMENTS POST-SIMEIO SOLUTIONS: WHY CIS SHOULD CONSIDER TAKING OFF THE RETROACTIVITY ASPECT FROM THE “DRAFT” GUIDANCE, United States Citizenship and Immigration Services (USCIS) in its revised Final Guidance, that was promulgated on July 21, 2015, suggests that the Simeio Solutions decision will not be applied retroactively, which is a significant departure from the USCIS’ Draft Guidance. As previously discussed in our above-mentioned article, in Simeio Solutions, the AAO specifically stated that when H-1B employees change their place of employment to a worksite location that requires employers to certify a new Labor Condition Application (LCA) for nonimmigrant workers to the Department of Homeland Security (DHS), this change may affect the employee’s eligibility for H-1B status; it is therefore a "material change". Because the decision was not very clear as to whether the AAO only referred to a move outside the Metropolitan Statistical Area (MSA), the DHS Ombudsman call on April 30th, 2015, clarified that amended petitions will be required only for movement of H-1B workers outside the MSA listed on the LCA. Then, just when the new changes regarding H-1B amendments started to sink-in, came the surprise. On May 21st, 2015, USCIS issued guidance instructing employers to submit amended petitions for employees who changed worksite locations prior to the issuance of the Simeio Solutions decision. Specifically, employers were asked to submit an amended H-1B petition if they, in good faith, relied on prior non-binding agency correspondence and did not file an amended petition due to a change in an MSA or area of intended employment. The employers were asked to submit such amended petitions by August 19th, 2015. Six days later, on May 27th, 2015, USCIS updated its guidance to reflect that the guidance was in a “draft” form, and that comments would be accepted “for a limited period of time.” USCIS’ final guidance provides the much needed relief sought by many companies (especially technology companies), employing a considerable amount of their workforce in the United States on H-1B visas. Of course, the new updates are welcome news since it would have been a significant cost in time and effort to employers for filing amended H-1B petitions on behalf of their employees for transfers that were made prior to the issuance of the Simeio Solutions decision. So, how does the new guidance helps H-1B employers, and when are they required to submit amended H-1B petitions? As per the new guidance, if an H-1B worker moved to a new location not covered by the existing petition prior to or on April 9th, 2015, the date on which the Simeio Solutions decision was published, the “…USCIS will generally not pursue new adverse actions (e.g., denials or revocations) solely based upon a failure to file an amended or new petition.” Simply put, an H-1B amended petition involving a location change outside of an MSA would be required if the change happened after April 9th, 2015. However, it needs to be noted that this guidance will not protect H-1B employers if an adverse action was initiated prior to July 21st, 2015. Further, the recent Memorandum provides a Safe Harbor Period for all moves requiring an H-1B amended petition, which happened between April 9th, 2015, and August 19th, 2015. If any move took place during this period of time then petitioning employers must submit H-1B amended petitions by not later than January 15th, 2016. Additionally, any change in the place of employment (outside the MSA listed on the LCA) after August 19th, 2015, shall require an amended H-1B Petition. The revised final guidance reconfirmed that an amended H-1B petition is not required if the geographical move is within the MSA. However, the petitioner is required to post the original LCA at the new work location. Similarly, an amended H-1B petition is not required if the H-1B employee is attending training sessions, seminars, conferences, etc. of a short duration at a location not listed on the LCA. Further, an H-1B amended petition need not be submitted to USCIS for short-term placements of up to 30 days, or in some case up to 60 days (where employee is still based at the “home” worksite). Last but not the least; the revised final guidance confirms that if an employer’s amended H-1B petition is denied, but the original petition remains valid, the H-1B employee may return to work at the place of employment covered by the original petition.  Matter of Simeio Solutions, LLC, 26 I&N Dec. 542 (AAO 2015).
H-1B VISA REFUSAL OR ADMINISTRATIVE PROCESSING UNDER INA 221(g) AT THE U.S. CONSULAR POST.
by Rabindra Singh
Upon approval of H-1B petition by the United States Citizenship and Immigration Services (USCIS), foreign nationals residing abroad may need to go to the U.S. Consulate/Embassy to get an H-1B visa stamped into their passport before they can travel to and enter the United States. Before going for the visa interview, it is very important for a visa applicant to understand the purpose of the visa interview, the discretionary powers vested in the Consular Officers, and most importantly, the kind of fraud, technical violations and/or misrepresentation that could result in visa refusal or administrative processing. First and foremost, it is very important to understand that although Consular Officers cannot re-adjudicate petitions approved by the USCIS, Consular Officers can certainly review the petitions to determine the eligibility of visa applicants. Consular Officers, thus, are vested with wide and discretionary powers. Till date, there is no set mechanism in-place by which a foreign national, applying for a visa abroad, can challenge a Consular Officer’s unfavorable exercise of discretion. To be specific, Consular Officers derive such broad discretionary powers through section 221(g) of the Immigration and Nationality Act (INA). A quick glimpse at Section 221(g) provides the factors that may form the basis of visa refusals or administrative processing. In simple layman terms, the statements in the application or in the papers submitted therewith may trigger visa denial. Further, a Consular Officer may determine that the application does not comply with the INA or regulations. If that happens then Consular Officers is bound to explain clearly “... what documents or other evidence is needed, or what procedural step needs to be completed (e.g., case being submitted to the Department for advisory opinion ...).” Additionally, a Consular Officer may refuse to issue visas if s/he "knows or has reason to believe" that the foreign national is ineligible to receive a visa. Interestingly, although “Reason to believe” is an objective determination based upon facts or circumstances which would lead a reasonable person to conclude ineligibility, it can be formed through hearsay evidence. In certain cases the final determination about visa can put on-hold pending “administrative processing” The Foreign Affairs Manual (FAM) defines “administrative processing” as clearance procedures or the submission of a case to the Department of State (DOS). The same FAM guidance counsels Consular Officers not to reveal to visa applicants the specific reason for administrative processing in a given case. Further, there is no strict timeline specified for administrative processing resolution. Even though the DOS Administrative Processing webpage informs us that most administrative processing is resolved within 60 days of the visa interview, it is very difficult to confirm this claim. In other words, clients whose visa applications are subjected to administrative processing could end up waiting significant amount of time (often in excess of 60 days) until the administrative processing is completed and visa is finally issued. In some cases, the administrative processing of the case can take up to few years. Types of Fraud, Technical Violations, and/or Misrepresentation That May Trigger Administrative Processing/Visa Refusal at Consular Posts. Understanding the kind of fraud, technical violations, and/or misrepresentation may help avoid the visa refusals or administrative processing at the Consular Posts abroad. Listed below are some typical violations, fraud or misrepresentations that could trigger administrative processing/visa refusal: H-1B employer required the beneficiary to pay the ACWIA fee or deducted certain fees associated with filing the I-129 petition, effectively lowering the beneficiary’s wages to less than the required prevailing wage; Employer failed to pay the beneficiary at least the prevailing wage for the particular occupation in the specific geographical location, as noted and attested to on the LCA filed with DOL; Beneficiary was working in a geographical location not covered by a valid Labor Condition Application (LCA) filed with Department of Labor (DOL); The employer placed the beneficiary in a non-productive status, commonly referred to as “benching” (where the beneficiaries are not paid or paid less than the full hours specified on the petition), when work was not immediately or continuously available; Business did not exist, no evidence of daily business activity, the business location was unable to support the number of employees claimed, or there was no evidence that the employer ever intended for the beneficiary to fill the actual job offered; Educational degrees or experience letters submitted were confirmed to be fraudulent; Signatures had been forged on supporting documentation; and Beneficiary performing duties that were significantly different from those described on the LCA and I-129 petition. Primary Fraud or Technical Violation Indicators. In addition to the typical violations such as fraud or misrepresentations that could trigger administrative processing/visa refusal, there are certain primary fraud or technical violation indicators (factors) that Consular Officers always remains on lookout. Results of a study conducted by the Office of Fraud Detection and National Security (FDNS) in collaboration with USCIS indicated that H-1B petitions filed for accounting, human resources, business analysts, sales and advertising occupations are more likely to contain fraud or technical violation(s) than other occupational categories. The following is a list of primary fraud or technical violation(s) indicators that potentially could contribute to administrative processing/visa refusal at a U.S. Consulate office abroad. Firms with 25 or fewer employees have higher rates of fraud or technical violation(s) than larger-sized companies. Firms with an annual gross income of less than $10 million have higher rates of fraud or technical violation(s) than firms with an annual gross income greater than $10 million. Firms in existence less than 10 years have higher incidences of fraud or technical violation(s) than those in existence for more than 10 years. Beneficiaries with only bachelor's degrees had higher fraud or technical violation(s) rates than did those with graduate degrees. Conclusion In conclusion, having an approved petition by the USCIS is not a guarantee that a foreign national will get an H-1B visa at the Consular Post abroad. As previously stated, Consular Officers have wide discretionary powers pertaining to visa issuance. Not only that, there is no set mechanism to challenge the Consular Officer’s unfavorable exercise of discretion. To avoid visa refusal or elongated administrative processing, H-1B visa applicants and prospective H-1B employers should take into consideration the type of fraud, technical violations, and/or misrepresentation that could result in such decisions and prepare accordingly. More so, because small organizations, new organizations or organizations reporting a certain level of annual gross income are always on the radar of Consular Officers as to fraud/technical violations, visa applicants should prepare well in advance and carry as many supporting financial or corporate documents as they can to prove that the petitioning company is not a shell business.  United States Department of Homeland Security’s agency responsible for adjudication of visa petitions/applications.  INA §221(g)(1), 8 U.S.C. §1201(g)(1), 22 C.F.R. §41.121; 9 FAM 41.121.  INA §221(g)(2), 8 U.S.C. §1201(g)(2)  Cable, DOS, 97-State-12958 (June 18, 1997).  22 C.F.R. 40.6.  9 FAM Appendix E, 404.  Posts should not inform interested persons, including attorneys, that a case has been referred to the Department for a name-check or an advisory opinion.  Pursuant to the American Competitiveness and Workforce Improvement Act (ACWIA), employers are required to pay an additional fee (commonly referred as ACWIA fee) of $750 or $1,500 unless exempt under Part B of the H-1B Data Collection and Filing Fee Exemption Supplement.  “Benching” occurs when an employer temporarily decides to place a beneficiary in nonproductive status without pay, or with reduced pay, during periods of no work. It should be noted that even H-1B workers without a current work assignment (i.e., benched) must be paid the prevailing wage or the actual wage.  a Division of the National Security and Records Verification (NSRV).
As many are aware, putting an end to the confusion that prevailed among Immigration Practitioners for almost two decades, the Administrative Appeals Office (AAO), through a Precedent decision, Matter of Simeio Solutions, LLC, 26 I&N Dec. 542 (AAO 2015), clarified that an amended H-1B Petition, with the corresponding LCA, is required to be submitted to United States Citizenship and Immigration Services (USCIS) when there is a material change in the terms and conditions of employment. In Simeio Solutions, the AAO specifically stated that when H-1B employees change their place of employment to a worksite location that requires employers to certify a new Labor Condition Application (LCA) for Nonimmigrant Workers to the Department of Homeland Security, this change may affect the employee’s eligibility for H-1B status; it is therefore a material change for purposes. Because the decision was not very clear as to whether the AAO only referred to a move outside the Metropolitan Statistical Area (MSA), the DHS Ombudsman call on April 30, 2015, clarified that amended petitions will be required only for movement of H-1B workers outside the MSA listed on the LCA. Then, just when the new changes regarding H-1B amendments started to sink-in, came the surprise. On May 21, 2015, USCIS issued guidance instructing employers to submit an amended petitions for employees who changed worksite locations prior to the issuance of Simeio Solutions decision. Specifically, employers were asked to submit amended H-1B petition(s) if they, in good faith, relied on prior non-binding agency correspondence and did not file an amended petition due to a change in an MSA or area of intended employment. The employers were asked to submit such amended petitions by August 19, 2015. Six days later, on May 27, 2015, USCIS updated its guidance to reflect that the guidance was in a “draft” form, and that comments would be accepted “for a limited period of time.” Further, on June 9, 2015, USCIS Director Leon Rodriguez, at the Council for Global Immigration’s 2015 Symposium, told a group of immigration and HR professionals that the USCIS understands that the August 19, 2015, deadline to file potentially thousands of amended petitions “is a problem” and employers may soon get relief. He further stated that the agency is considering issuing a statement “very soon” that employers will only have to abide by the Matter of Simeio Solutions decision going forward and not retroactively. Mr. Rodriguez added that: “USCIS is working to build real protection, so that those of you [employers] who have made changes in relying on inconsistent [USCIS] pronouncements will have an adequate level of protection and comfort to move forward without necessarily needing to make an amended filing.” He also said that guidance related to the matter would be sharpened and intimated that the deadline may be extended. The real questions to ask and analyze are: Why the agency wants take off the retroactivity aspect from the draft guidance which was issued earlier as a guidance; and Whether it is just a smokescreen to cover the wrong guidance which CIS should not have issued in the first place? The basic tenets of administrative law suggest that administrative agencies such as USCIS may make both prospective and retroactive policies because they are vested with quasi-legislative and quasi-adjudicatory powers. In deciding whether to grant or deny retroactive force to a newly adopted administrative rule or guidance, reviewing courts look to the standard established by the Supreme Court in SEC v. Chenery Corp (Chenery II). The standard laid down in Chenery II specifically stated: “….[R]etroactivity must be balanced against the mischief of producing a result which is contrary to a statutory design or to legal and equitable principles. If that mischief is greater than the ill effect of the retroactive application of a new standard, it is not the type of retroactivity which is condemned by law Deciphering what was stated in Chenery II, the D.C. Circuit in Retail, Wholesale and Dep’t Store Union, AFL-CIO v. NLRB stated that: …”which side of this balance preponderates is in each case is a question of law, resolvable by reviewing courts with overriding obligation of deference to agency decision and courts have not infrequently declined to enforce administrative orders when in their view the inequity of retroactive application has not been counterbalanced by sufficiently significant statutory interests.” Further, Judge McGowan in Retail, Wholesale laid down the following five (5) factor test that the Courts take into consideration to resolve the problem of permissible retroactivity. These include: 1. whether the particular case is one of first impression; 2. whether the new rule represents an abrupt departure from well-established practice or merely attempts to fill a void in an unsettled area of law; 3. the extent to which the party against whom the new rule is applied relied on the former rule; 4. the degree of the burden which a retroactive order imposes on a party, and 5. the statutory interest in applying a new rule despite the reliance of a party on the old standard. This equitable formula focuses attention on the degree of “surprise,” the harm to the party burdened by the new policy, and the need, in terms of fulfilling the statutory goal, for retroactive effect. The test permits a flexibility that invites close case-by-case inquiry instead of broad generalization. Keeping Chenery II and Retail, Wholesale, in perspective, if challenged in court of law, USCIS will face an uphill battle defending the retroactivity part in the draft guidance which specifically requires employers to submit H-1B amended petitions if their employees changed worksite locations prior to the issuance of Simeio Solutions decision. Asking H-1B employers to submit an amended petitions who relied, in good faith, in the past on USCIS’ previous non-binding statements and/or correspondence, is unquestionably a case of “first impression” or commonly referred as “surprise.” In essence, such a move marks a clear departure from the previous practice that many employers followed, correctly or incorrectly, for over a decade. USCIS must be mindful of refraining from imposing significant financial burden on H-1B employer by asking them to submit H-1B amended petitions involving transfer of employees, outside the MSAs as indicated their LCAs, prior to the issuance of Simeio Solutions decision. It is important to note here that the D.C. Circuit in Retail, Wholesale stated that: “[u]nless the burden of imposing the new standards is de minimis, or he newly discovered statutory design compels its retroactive application, the principles which underlie the very notion of ordered society, in which authoritatively established rules of conduct may fairly be relied upon, must preclude its retroactive effect.” [emphasis supplied] By no means is the additional burden of submitting H-1B amended petitions for employee(s) who changed work location(s) prior to May 21, 2015, is de minimis as it involves significant costs in terms of filing and legal fee in order to comply with the new CIS’s guidance. On the April 30, 2015, DHS Ombudsman teleconference, it was estimated that if an employer moves 50 workers three (3) times a year, that would be 150 amended petitions resulting in half a million dollars in legal fees and costs. To conclude, as proposed by the Director, Leon Rodriguez, USCIS should consider revising the draft guidance that was issued post-Simeio Solutions decision. USCIS should consider taking off the retroactivity aspect of the guidance which would require the H-1B employers to submit amended petitions for employees working in H-1B status who previously moved outside the MSA indicated on the LCA. If USCIS refrains doing that and the guidance is challenged in a court of law, the affected individual/corporation may have a compelling claim that he or she lacked fair notice that the conduct in question was proscribed. Retroactivity concerns may prompt an argument that the use of adjudication is arbitrary and capricious and may rise to the level of due process violation.  332 U.S. 194 (1947).  332 U.S. at 203.  466 F.2d 380 (D.C Cir. 1972).  specifically until May 21, 2015.  of submitting and obtaining an approved LCA from the Department of Labor, and posting the LCA to the new worksite location outside the MSA without submitting an amended H-1B petition to CIS.  See Letter from Efren Hernandez III, Dir., Bus. And Trade Branch, USCIS, to Lynn Shotwell, Am. Council on int’l Pers., Inc. (October 23, 2003).