Ashwin Sharma quoted by the Times of India on USCIS’s latest Policy Memo, a Major Victory for H-1B Consulting Firms/Employees
I was quoted today in a Times of India article on USCIS’s issuance of a game-changing new policy memorandum yesterday in which it rescinds and replaces two previous policy memoranda (2010, 2018) regarding the adjudication of H-1B petitions for professionals assigned to third-party job sites.
Among its other directives, the memo instructs USCIS officers to stop requiring H-1B employers to provide job itineraries for H-1B candidates as well as private contractual documentation between third-party client/vendor companies. The memo advises USCIS officers to refrain from issuing ridiculously short approval durations in these cases (as little as 1-2 months). The memo also makes it easier for an H-1B employer to demonstrate an eligible Employer-Employee relationship with its H-1B employee.
In summary: though USCIS still maintains arrows in its quiver to target the H-1B program, the new guidance represents extremely positive news for H-1B stakeholders, particularly those within the consulting industry. The policy guidance is effective immediately, and applies to any pending or new requests for H-1B classification, including motions on and appeals of revocations and denials of H-1B classification.
The U.S. Supreme Court today ruled that the Department of Homeland Security (DHS)’s decision to rescind the Deferred Action for Childhood Arrivals Program, also known as DACA, was arbitrary and capricious under the Administrative Procedure Act. As a result, the Trump administration may not immediately proceed with its plan to end a program protecting about 700,000 young immigrants known as Dreamers from deportation.
“Sharma also said H-1B employees face another challenge. The inability of an employee to continue working and retaining insurance benefits because of USCIS’s historic delays in adjudicating extensions (again, for the H-1B in particular, the present unavailability of the premium processing option leaves H-1B employers and employees in a very difficult predicament). “The USCIS’s delay can severely impact an H-1B/EAD (employment authorisation document), employee’s ability to maintain their employment and associated insurance benefits by placing them in a gray area – they may be lawful to remain in the USA during this time, but they cannot work until USCIS approves their H-1B or EAD in these cases,” he said.”
Ashwin Sharma quoted in the Times of India re: the President’s Immigration Suspension and the possible future impact to Nonimmigrant visas such as the H-1B
“Ashwin Sharma, Jacksonville-based immigration attorney, told TOI, “At present the proclamation has left untouched the vulnerable visas in the non-immigrant categories. However, section 6 of the proclamation is deeply concerning as it leaves the door open to a future attack on the H-1B and other work visas.”
Sharma hopes that the President has no further plans to attack the H-1B and other non-immigrant visas under the guise of ‘protecting the American worker’. He wondered whether the proclamation is a subtle and first test of the waters. According to him, US will need its skills gap filled by H-1B and other professional workers in the long recovery from the ravages of Covid-19.”
Attorney Sharma quoted again by the Times of India about the Presidential Proclamation Suspending Entry of Certain Immigrants (formerly known as the “Immigration Ban”)
“Ashwin Sharma, Florida based immigration attorney told TOI, “As per this proclamation, the categories most impacted would include green cards for parents and siblings of US citizens, and for spouses and children of green card holders.”
Sharma says, “The Presidents proclamation is illogical. It characterizes a 65-year-old parent of a US citizen as a greater threat to the American worker than the same US citizen’s 20-year-old son. The proclamation is also disingenuous in that in that it is attempting to rebrand the existing processing delays caused by Covid-19 as a targeted ‘suspension’ to shift public scrutiny away from the administration’s delays in addressing the pandemic, and onto its favourite scapegoat, immigrants.”
Ashwin Sharma quoted by the Times of India on President Trump’s Threat to issue Executive Order Banning Immigration during the Pandemic
Ashwin Sharma, Jacksonville based immigration attorney told TOI,
“This is the umpteenth incarnation of this same threat and this one in particular seems toothless and impotent, though it’s always an effective dogwhistle for his anti-immigration supporters. Anytime President Trump needs an escape from facts and critics, he is quick to break the glass door labelled “Break in Case of Emergency” to whip out an executive order on Immigration.
Sharma added, “The simple fact is that courts will block any such overbroad executive order. Plus immigrants aren’t exactly lining up to get into America at the moment. And the ones that are here are helping American companies stay afloat, treating American COVID19 patients, researching virus cures, supporting healthcare technology, delivering food and supplies, and other key roles.”
UPDATE: AILA REPORTS VSC OPEN — ORIGINAL POST: AILA Reports that USCIS’s Vermont Service Center Is Temporarily Closed on April 10, 2020 due to COVID19
Via AILA.org – April 13, 2020
“Last week, USCIS informed employees about a presumed positive COVID-19 case in the Vermont Service Center (VSC), but the test results came back negative. The VSC is now able to accept files and/or any other form of correspondence.”
Via AILA.org – April 10, 2020
“AILA has received reports from various members that the Vermont Service Center (VSC) has been closed due to a potential COVID-19 exposure.
VSC will likely be closed at least until Wednesday April 15, 2020, for cleaning. During this time, it appears that mail cannot be delivered to the VSC. AILA National has reached out to USCIS for confirmation and further guidance on how filings should be handled in the interim. Updates will be provided as soon as more information is available.”
On behalf of myself and other Immigration Lawyers across the US: our prayers are with the VSC Staff. The volume of complex cases they assess and adjudicate every day is underappreciated, as is the critical importance of their work. We hope this issue is cleared up soon, and that the people at VSC are safe.
Ashwin Sharma was selected as one of the Recipients of the 2020 Jacksonville Business Journal’s Ultimate Attorney: Best of the Bar Award
“U.S. Citizenship and Immigration Services today announced that, due to the ongoing COVID-19 National Emergency announced by President Trump on March 13, 2020, we will accept all benefit forms and documents with reproduced original signatures, including the Form I-129, Petition for Nonimmigrant Worker, for submissions dated March 21, 2020, and beyond.
USCIS already accepts various petitions, applications and other documents bearing an electronically reproduced original signature. This means that a document may be scanned, faxed, photocopied, or similarly reproduced provided that the copy must be of an original document containing an original handwritten signature, unless otherwise specified. For forms that require an original “wet” signature, per form instructions, USCIS will accept electronically reproduced original signatures for the duration of the National Emergency. This temporary change only applies to signatures. All other form instructions should be followed when completing a form.
Individuals or entities that submit documents bearing an electronically reproduced original signature must also retain copies of the original documents containing the “wet” signature. USCIS may, at any time, request the original documents, which if not produced, could negatively impact the adjudication of the immigration benefit.
 See Volume 1, General Policies and Procedures, Part B, Submission of Benefit Requests, Chapter 2, Signatures [1 USCIS-PM B.2]”
Reminder: Effective today, March 20, 2020, USCIS will not accept any new requests for Premium Processing
U.S. Citizenship and Immigration Services today announced the immediate and temporary suspension of premium processing service for all Form I-129 and I-140 petitions until further notice due to Coronavirus Disease 2019 (COVID-19).
Effective today, March 20, 2020, USCIS will not accept any new requests for premium processing. USCIS will process any petition with a previously accepted Form I-907, Request for Premium Processing Service, in accordance with the premium processing service criteria. However, we will not be able to send notices using pre-paid envelopes. We will only send batch-printed notices. Petitioners who have already filed a Form I-129, Petition for a Nonimmigrant Worker, or Form I-140, Immigrant Petition for Alien Workers, using the premium processing service and who receive no agency action on their case within the 15-calendar-day period will receive a refund, consistent with 8 CFR 103.7(e). We will notify the public with a confirmed date for resuming premium processing.
USCIS will reject the I-907 and return the $1,440 filing fee for all petitions requesting premium processing that were mailed before March 20 but not yet accepted.
This temporary suspension includes petitions filed for the following categories:
- I-129: E-1, E-2, H-1B, H-2B, H-3, L-1A, L-1B, LZ, O-1, O-2, P-1, P-1S, P-2, P-2S, P-3, P-3S, Q-1, R-1, TN-1 and TN-2.
- I-140: EB-1, EB-2 and EB-3.
This includes new premium processing requests for all H-1B petitions, including H-1B cap-subject petitions for fiscal year 2021, petitions from previous fiscal years, and all H-1B petitions that are exempt from the cap. USCIS previously announced the temporary suspension of premium processing for FY 2021 cap-subject petitions and tentative dates for resumption of premium processing service. This announcement expands upon and supersedes the previous announcement.
Judge Rosemary M. Collyer of the US District Court for the District of Columbia ruled in the favor of ITServe Alliance, Inc. in its Administrative Procedure Act (APA) suit against USCIS. This is extremely positive news for H-1B Petitioners and Beneficiaries, and in line with the arguments that these stakeholders have been making before USCIS for some time.
The decision makes for some great reading as the Judge deftly fillets USCIS’s “strategic” attempts to ensure that its Policy Memos maintain sufficient legal standing to have the force of the law, but not sufficient to be legally challenged; the Judge also rejects USCIS’s interpretation on the issues of, “Employer-Employee Relationship” and “Specialty Occupation”, indicating that, “The CIS interpretations…are plainly erroneous“, and dismisses the Itinerary requirement quite simply because, “…is not in the statute.”
“The Court concludes that, as applied to these Plaintiffs in the IT consulting sector, it is irrational, that is, arbitrary and capricious, to impose the INS 1991 Regulation as does CIS, requiring contracts or other corroborated evidence of dates and locations of temporary work assignments for three future years; it is, in fact, a total contradiction of the Plaintiffs’ business model of providing temporary IT expertise to U.S. businesses. Nothing more clearly illustrates the legislative nature of the CIS interpretation of the Regulation because it would effectively destroy a long-standing business resource without congressional action.”
Next action: “The subset of cases that are assigned to Judge Rosemary M. Collyer will be remanded to CIS for reconsideration consistent with this Opinion and the Court will order that such reconsideration shall be completed in no more than 60 days.”
Additional Excerpt of the Decision Below:
“Approximately thirty-three cases have been filed in this District challenging the handling of H-1B visa applications by CIS, a constituent agency of the Department of Homeland Security (DHS). Although not “related” within the meaning of Local Civil Rule 40.5(a)(3), the cases have been consolidated before this Court with the agreement of the assigned Judges for briefing on three legal issues under Local Civil Rule 40.5(e):
1. the authority of CIS to grant visas for less than the requested three-year period;
2. the authority of CIS to deny visas to companies that place employees at third-party
locations either because the third party is determined to be the employer or because
specific and detailed job duties are not provided with the visa application; and
3. the related statute of limitations issues raised by the government.
See 3/6/2019 Minute Order Referring Case for Limited Purpose (Consolidation Order), ERP Analysts v. Cissna, No. 19-cv-300. Question 2 concerns the employer-employee relationship, the availability of work for a temporary foreign worker, and the foreign worker’s maintenance of status. Plaintiffs allege that CIS is applying new versions of these requirements, without engaging in rulemaking, to H-1B applicants that are IT consulting firms and not to other U.S. employers.
The Court finds, as discussed below, that:
1. The 1991 Regulation was adopted by INS through notice-and-comment rulemaking and the statute of limitations ran out long before this case was filed. It is subject only to an as-applied challenge.
2. CIS issued a 2010 Guidance Memorandum (CIS 2010 Guidance Memo), also referred to as the Neufeld Memo, from which comes a new employer-employee relationship set of requirements. It is timely challenged on an as-applied basis but not as a facial challenge.
3. CIS issued a 2018 Policy Memorandum, PM-602-0157 (CIS 2018 Policy Memo). It can be challenged either facially or as applied.
4. The current CIS interpretation of the employer-employee relationship requirement is inconsistent with its regulation, was announced and applied without rulemaking, and cannot be enforced.
5. The CIS requirements that employers (1) provide proof of non-speculative work assignments (2) for the duration of the visa period is not supported by the statute or regulation and is arbitrary and capricious as applied to Plaintiffs’ visa petitions. These requirements were also announced and applied without rulemaking and cannot be enforced.
6. CIS’s itinerary requirement was superseded by a later statute that permits employers to place H-1B visa holders in non-productive status and is, therefore, no longer enforceable.
7. CIS has the authority to grant visas for less than the requested three-year period but must provide its reasoning behind any denials, in whole or in part.”
Lubna Kably (Times Of India) explores the ignoble treatment of Indian professionals in and by the US following Pres. Trumps visit to India
Via Lubna Kably, TOI Opinions
“Su Chhe (What’s up) President Donald Trump? Given your rhetoric that India is hitting USA very hard, it looks like you are not in a good mood. Perhaps, our crowds will cheer you up.