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It’s That Time of Year: the H-1B Fiscal Year Quota and the H-1B Haters

The Fiscal Year Quota for H-1B visas is, as usual, just opened on April 1 which elicits a bit more public interest about the H-1B program in particular and Business Immigration in general.  Unfortunately, Business Immigration is the orphaned step-brother of Family Based Immigration and the H-1B is not as publicly controversial a subject as most other immigration issues in the news though, so this public interest is invariably fleeting.

This is also about the time of year when anti-H-1B propagandists crawl out into the sunlight like xenophobic groundhogs to regurgitate their timeworn arguments against the visa program. They allege that the H-1B program as a whole fails to deliver the “best and the brightest” to America, that Americans are being displaced by foreigners earning “low wages“, that there are sufficient numbers of qualified American workers to fill the proffered jobs. Some of the slicker ones even feign an interest in the welfare of H-1B workers by claiming widespread abuse by H-1B employers (despite the fact that H-1B workers may transfer to another employer in 8 days whenever they’d like, and that they are protected by the DOL W&H and other agencies to a degree that would make a U.S. Citizen green with envy).

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Major Policy Shift: USCIS Rescinds Guidance on H-1B Computer Related Positions without Notice or Due Process on the Eve of the H-1B Fiscal Year Cap with 200,000+ I-129 applications enroute to USCIS for delivery by April 7, 2017 – the Eligibility of an H-1B Petition for IT Workers will now Increasingly be based on its LCA Wage Level (read: LCA Level 1 Wages=Problem)

On March 31, 2017 USCIS issued a policy memorandum that superseded and rescinded a 12/22/00 memorandum with guidance on H-1B computer related positions issued by the NSC.  This abrupt change coincidentally uproots established H-1B guidance and processes without notice or due process on the eve of the H-1B Fiscal Year Cap with 200,000+ I-129 applications enroute to USCIS for delivery by April 7, 2017.

The practical impact of this memo will be to increase Requests for Evidence and Denials on the thousands of H-1B petitions filed on behalf of IT professionals, and those with a Level 1 wage marked on their LCA/I-129 petitions are at heightened risk.  The memo is in line with USCIS’ desire to place a greater emphasis on requiring IT Petitioners to list a greater than Level 1 wage on the LCA.  The same concept seems to have been behind the holdings in several recent Administrative Appeals Office decisions denying IT positions on the basis of LCA Level 1 wages.  AAO Decision Examples 1, 2 and 3 (PDFs).

Though Petitioners are not prohibited from paying an H-1B employee more than what is listed on the corresponding LCA, and frequently do, their H-1B petitions may now be denied because the USCIS appeared to have suddenly recalled that “Prevailing Wage Determination Policy Guidance” issued by the DOL (which provides a description of the wage levels) indicates that a Level 1 wage rate is generally appropriate for positions for which the Petitioner expects the Beneficiary to have a basic understanding of the occupation. A Level 1 wage rate indicates:
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Fake News claiming President Trump Authorized Visa-Free Travel for Various Countries (including Afghanistan)

I was recently asked whether it was true that President Trump had authorized Afghanistan for Visa Free travel to the United States for visits of up to 90 days at a time.

It seemed a bit inconsistent with the tone of the Administration’s recent actions, and because all of the 38 countries and territories selected by the U.S. government for the Visa Waiver Program program are high-income economies with a very high Human Development Index.  As well, a Forbes article from 7 days ago noted that Afghanistan has the second highest B (visitor) visa refusal rate of 73.8% while a country must have had a nonimmigrant visa refusal rate of less than 3% for the previous year to qualify for the Visa Waiver Program. Visa Waiver Program. Alison Siskin. January 15, 2013, (PDF)

I wanted to give a definitive answer to the original question, so I, like anyone verifying an incredible “news story” these days, reviewed the source (in this case a suspicious website entitled “USA Television” that aped, perhaps not coincidentally, the same Old London font as “The Washington Post” and “The New York Times“.  I then turned to the ever reliable Snopes.com which had a direct reference to the Visa Free Travel article and to “USA Television” itself:

“The web site USA Television capitalized on that controversy by pumping out a series of nearly identical fake news articles, each holding that President Trump had “signed a visa-free travel policy” for residents of a given country, ostensibly to “strengthen trade” with that country.  For example, one such article claimed such a policy had been implemented for Pakistani nationals…But USA Television also ran an article that said the very same thing about Ghana. And Botswana. And Belarus.

In fact, in separate articles USA Television claimed President Trump had also implemented visa-free travel policies for citizens of Ethiopia, Haiti, Kenya, Jamaica, Malawi, Mauritius, Papua New Guinea, Russia, South Africa, Sri Lanka, Tanzania, Thailand, Uganda, Ukraine, Zambia, Zimbabwe, and the entire Caribbean…If USA Television and their ilk were to be believed, virtually anyone from anywhere in the world could now enter the U.S. for up to six months at a time without the need for obtaining a visa first.”

Thus, I can state that President Trump has not authorized Afghanistan (among many other countries) for Visa Free travel to the United States.  But the lesson we can learn here is that it is everyone’s responsibility to engage in some critical thinking and make an effort to vet a “news” story, else you breathe life to a lie.

Attorney Sharma speaks to WJXT Channel 4 News regarding President Trump’s Travel Ban (Version 2.0)

Immigration Attorney Ashwin Sharma interviewed by WJXT News4Jax on President Trump’s new immigration executive order (Travel Ban Version 2.0) anticipated to be issued this week. The new order is expected be specifically tailored to address National Security issues and to overcome Constitutional challenges like those that affected the earlier executive order.

The new Executive Order will purportedly take effect 1-2 weeks after it is signed, and appears to continue to focus on the original seven Muslim-majority countries – Iran, Iraq, Syria, Yemen, Somalia, Sudan and Libya, but exempt green-card holders and dual citizens of the U.S. and any of those countries. The new order would apparently no longer specifically reject Syrian refugees when processing new visa applications. As well, DHS Sectretary Kelly indicates that if travellers are “in motion from some distant land”, at the time the Executive Order takes effect, they “will be allowed in”.

America’s Troubled History With Immigrants: A summary of four past Immigration Policies also implemented in the name of “Enhancing Public Safety”

President Trump’s January 25, 2017 Executive Order entitled “Enhancing Public Safety in the Interior of the United States” temporarily suspends all immigration for citizens of seven majority-Muslim countries: Iraq, Syria, Iran, Sudan, Libya, Somalia and Yemen. 500,000+ U.S. legal permanent residents were initially included in the suspension, but were given back their right to return to the U.S. on January 29, 2017 by way of a special statement by the Homeland Security Secretary John Kelly.  Travelers with previously issued and valid visas were detained at airports and many have been removed. The EO indefinitely halts the processing and acceptance of Syrian refugees and calls for a four-month general suspension of America’s refugee program. Further, the EO cuts the maximum number of refugees that could be accepted to 50,000, less than half of the refugee limit last set by President Obama.

This EO’s purported mission of “Enhancing Public Safety” reminds us of other troubling U.S. Immigration policies our government has introduced and implemented in the past, also in the name of “Public Safety”.  These restrictive immigration policies and laws, some aided by the U.S. Supreme Court’s creative adjudication, kept U.S. citizenship and constitutional protections from most ethnic groups solely on the basis of race, nation of origin or gender. Summarized below are four such nefarious acts and laws aimed at halting immigration and curbing rights:

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No, Zoe Lofgren’s Proposed Legislation Does Not Call For a New Mandatory Minimum H-1B Salary of $132,000

There appears to be widespread confusion, primarily among dozens of Indian news media outlets regarding U.S. Rep. Zoe Lofgren (D-Calif.) introduction of new legislation last week entitled “High-Skilled Integrity and Fairness Act of 2017” that would, among other actions, raise the salary level at which H-1B dependent employer are exempt from attestation requirements to roughly $132,000 and eliminate the Master’s Degree exemption for dependent employers. Most of these news articles are reporting that the minimum mandatory salary paid to an H-1B worker would be increased to $132,000, but this is incorrect.

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The White House Now Apparently Focusing on the Dream Act, H-1B, L-1 and other Skilled/Professional Work Visas

Newley Purnell of the The Wall Street Journal blogged today about the White House’s Plans for H-1B and other Skilled/Professional Work Visas.  The changes are likely to include “Tighter restrictions on skilled worker visas” which could be issued via “both executive action by President Donald Trump and via Congressional moves“.  The article notes that “President Trump could use an executive directive to take steps like ending a provision announced in 2014 that allows spouses of H-1B visa holders [H-4 Spouses] to work in the U.S.” As well, any such changes would be included in a more comprehensive immigration reform effort.

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Is Hillary Clinton anti-H-1B?

Vox news reports the disappointing news that Hillary Clinton “just put a stake” through the idea of “expanding visas to allow more high-skilled workers to come to the United States” in favor of “unauthorized immigrants and their families (millions of whom, of course, are US citizens and voters)“.  However, it should be noted that Clinton did not address any proposed changes to the H-1B or L-1 programs with specificity, which does leave room for hope for the U.S. technology sector.

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Sudden EB-2 Priority Date Retrogression:  Did Donald Trump just get installed as Director of U.S. Citizenship and Immigration Services?

Many Employment Based 2nd Preference (EB-2) Indian applicants were expecting to file their Adjustment of Status (Green Card) applications in five (5) short days.  These applicants include Doctors, Veterinarians, Scientists, Information Systems Managers, Senior Software Developers, Lawyers and many other advanced degree professionals, all readying their application in October of 2015 based on next month’s visa bulletin (issued September 9th 2015) which declared that EB-2 India dates were current as of July 2011.  While the actual issuance of a green card would still have taken several more years, these applicants would have attained significant benefits while continuing their patient multi-year wait in line.  This news was greatly welcomed by EB applicants who felt that this was our Administration’s first real “immigration reform” initiative intended specifically to benefit America’s highly educated immigrants.

However USCIS has taken an about-turn on this point by announcing, in a highly confusing manner, the retrogression of those July 2011 dates, back to July 2009.  By way of background, a second visa bulletin announcement in one month is highly unusual, as is for the second announcement to be issued on a Friday, on the 25th of a month, at 4 pm, less than a week from the date the immigrant filings were set to begin.  As a direct result, thousands advanced degree professionals, mostly born in India, who have been waiting to file their green cards for 4+ years, will have to keep waiting.  This despite the applicants’ reasonable reliance on the Department of State’s Visa Bulletin of September 9th, or the thousands of dollars they each have likely spent in preparing their green card application(s) based on the same.

In this case, USCIS broke a promise to advanced degree immigrants who comprise a large percentage of our best and brightest.  USCIS’ actions in this regard are simply unintelligible and amount to exactly what Mahatma Gandhi spoke of when he noted that “a breach of promise is a base surrender of truth“.  USCIS’ action also moves us backward to the quota systems which the current immigration law, the Immigration and Nationality Act of 1965, was created to counter.

This is a highly suspect and unwelcome development which brings to mind July 2007, when USCIS attempted something similar.  At that time, a lawsuit stopped USCIS from closing the filing window and in fact kept said window remained open for about two months (longer than if USCIS didn’t attempt to shut down filings).

I’m hopeful that history will repeat itself.

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Update: USCIS Final Guidance on When to File an Amended or New H-1B Petition after Matter of Simeio Solutions, LLC

Today USCIS issued its long awaited USCIS final guidance on how to implement the AAO precedent decision Matter of Simeio Solutions, LLC on when an amended or new H-1B petition must be filed.  By way of background, after years of allowing ‘LCA Amendments’ in H-1B cases involving solely a change in job sites, on April 9, 2015, the AAO’s sudden adoption of Matter of Simeio Solutions as precedent now requires a full H-1B amendment to be filed in most such cases: for many H-1B employers the AAO holding essentially mandates increased risk, complexity, cost, delay and uncertainty  Interestingly, it is probable that the need for a Matter of Simeio Solutions  came about, at least in part, to combat the widespread adoption of LCA amendments which became more popular after the USCIS issued the January 2010 Neufeld Memo, (about which I was interviewed by BBC Hindi), another suddenly imposed mandate that also increased risk, complexity, cost, delay and uncertainty for H-1B businesses (and from which USCIS somewhat backed away on later that same year).  In any case, after August 19, 2015 USCIS will require that a full H-1B amendment be filed together with a $325 fee.  Judging by recent H-1B regular processing times, USCIS may adjudicate these cases 3-6+ months after they are filed (faster if the Employer also pays USCIS a $1225 premium processing government fee).

USCIS guidance on Matter of Simeio Solutions provides an H-1B petitioner (employer) three different deadlines depending on when its employee changed location:

a) If, on or before April 9, 2015, a petitioner’s H-1B employee moved to a new place of employment (not covered by an existing, approved H-1B petition): an H-1B requirement may be filed, but is not required to be filed.USCIS indicates that in such cases, it “will generally not pursue new revocations or denials based upon failure to file an amended or new petition. However, notices of intent to revoke, revocations, requests for evidence, notices of intent to deny, or denials issued prior to July 21, 2015 (date of this final guidance) remain in effect and the petitioner must comply with them

b) If, after April 9, 2015 but prior to August 19, 2015, a petitioner’s H-1B employee moved to a new place of employment (not covered by an existing, approved H-1B petition): “The petitioner must file an amended or new petition by January 15, 2016. USCIS will consider filings prior to the deadline for this safe harbor period to be timely for purposes of the regulation. However, if the petitioner does not file the amended or new petition within the time permitted, the petitioner will be out of compliance with DHS regulations. The petitioner’s current Form I-129, Petition for a Nonimmigrant Worker, H-1B petition approval will be subject to a notice of intent to revoke and the employee may be found to not be maintaining his or her H-1B status.”

c) If, on or after August 19, 2015, a petitioner’s H-1B employee moved to a new place of employment (not covered by an existing, approved H-1B petition): “The petitioner must file an amended or new petition before an H-1B employee starts working at a new place of employment not covered by an existing, approved H-1B petition.”

While acknowledging favorably USCIS’ grant of additional time for compliance with Matter of Simeio Solutions, one of the primary issues faced by an H-1B employer presently is that while it may place its H-1B employee at a new job site and initiate work there at roughly the same time as in LCA amendment situations, in reality it may be immeasurably difficult to expect all affected parties to wait for a final USCIS adjudication (for which a longer wait than usual is likely based on the number of applications expected to be filed).  Second: such adjudications are often preceded by the issuance of and response to (usually) lengthy Requests for Evidence that frequently require both the employer and the employee to essentially ‘reinvent the wheel’, in other words, reestablish many elements of the case over again, including, amazingly, specialty occupation and beneficiary’s qualifications.  These adjudications can be expensive, time consuming and can ultimately result in denials of previously approved H-1B petitions, at an especially inopportune moment for the Employer/Employee (new assignment, new project etc).  This is both because unlike Matter of Simeio Solutions, the vast majority of AAO are non-precedent/ not binding on USCIS, and because USCIS is simply not required to grant discretion in extensions or amendments of H-1B employment involving the same employee and same employer,

“CIS has the authority to question prior determinations. Adjudicators are not bound to approve subsequent petitions or applications seeking immigration benefits where eligibility has not been demonstrated, merely because of a prior approval which may have been erroneous. Matter of Church Scientology International, 19 I&N Dec. 593, 597 (Comm. 1988). Each matter must be decided according to the evidence of record on a case-by-case basis. See 8 CFR § 103.8(d).”

Yates Memo of April 23, 2004 “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.”

In short: minor location changes alone will now expose an H-1B employer to additional delay, expense and to the Totality of USCIS Scrutiny. Matter of Simeio Solutions and today’s policy guidance are certain to have a widespread impact on a variety U.S. business sectors, and like the January 2010 Neufeld Memo, both maintain the appearance of being engineered specifically to target the U.S.’ Information Technology Consulting sector, and by extension, Indian Nationals, who also received 70% of all H-1B petitions approved in FY2014.

There is a sharp dichotomy between our Nation’s Business and Family Immigration Policies: the former is lucky to receive an iota of the political attention and importance that the latter enjoys fairly consistently. By ratifying Matter of Simeio Solutions, USCIS has taken a firm step towards joining the Department of StateConsulates in steering the H-1B program down the same Road to Redundancy most recently traveled by the once-useful-but-no-longer-viable-for-US-business L-1B and ‘B-2 in Lieu of H-1B‘ programs (The F-1 OPT is next – and already targeted by anti-H-1B groups).  However, for U.S. businesses to grow, particularly those within STEM fields, our policymakers and stakeholders must acknowledge the critical import of Business Immigration programs such as the H-1B, and the significant contribution that H-1B professionals make towards our Nation’s future.  Aid must be provided in identifying and removing unreasonable obstacles from these programs in favor of sustainable solutions which must be effected through a lengthier rule-making process incorporating greater input from stakeholders to establish expeditious, cost-effective and workable solution(s) that to satisfy both USCIS and U.S. Business’ requirements.

It is abundantly clear that the U.S. maintains a critical and demonstrated need for H-1B professionals, and certainly for the continued viability of the H-1B program itself.  This fact is demonstrated most recently in April 2015 by the 233,000 H-1B applications filed by professionals for one of the approximately 85,000 spots in our (insufficient) yearly quota.  Our rejection of hundreds of thousands of professional workers over the years is untenable: it negatively impacts our ability to conduct business and attract the world’s Best and Brightest.  Further, while other nations eagerly recruit STEM workers (sometimes from within our own borders) each year we see more restrictions and obstacles ‘added-on’ to Business Immigration Programs, most particularly the H-1B.

Links:

USCIS POLICY GUIDANCE OF JULY 21, 2015 – Final Guidance on When to File an Amended or New H-1B Petition After Matter of Simeio Solutions, LLC

SIMEIO SOLUTIONS, LLC, 26 I&N Dec. 542 (AAO 2015) (PDF)

NEUFELD MEMO – January 2010 Neufeld Memo