USCIS’ Latest H-1B Policy Changes Continue to Target IT Consulting Firms that Hire H-1B Workers
USCIS fired another broadside into the H-1B IT Consulting Industry with yesterday’s Policy Memo PM-602-0157 entitled “Contracts and Itineraries Requirements for H-1B Petitions Involving Third-Party Worksites”. The policy memo is effective February 22,2018 onwards and will – no surprise here – create even more obstacles for Petitioners of H-1B workers who will be employed at one or more third-party worksites (in other words, U.S. IT Consulting companies employing H-1B workers).
In summary, the memo calls for increased scrutiny on H-1Bs cases involving third-party consulting assignments (despite the fact that since 2010’s Neufeld Memo, establishing an approvable H-1B for third-party consulting cases has always been extremely difficult, with USCIS often requiring, in my opinion, the Petitioner to establish its case beyond the legally required preponderance of the evidence standard). The memo warns that USCIS will require additional end-client contracts/statements and other documentation, perhaps even with the initial petition itself. Even if the Petitioners can overcome these additional burdens, USCIS warns that it will only grant an approval through the duration established (this likely means more one year approvals versus three year). This specific reference to a shortened H-1B duration is a consistent theme underscoring several USCIS policy changes since Matter of Simelio Solutions, I assume, to increase the complexity, cost and inconvenience relating to hiring H-1B workers.
The memo also burdens H-1B Petitioners with establishing eligibility for two cases per H-1B employee: the memo includes a formalized restatement of a policy USCIS’ RFE’s had already adopted in the past few months: even if an H-1B petition is approved, when an extension of said petition is filed (1-3 years later), the Petitioner will be required to affirmatively provide evidence that it complied with the terms and conditions of the past duration of H-1B employment.
USCIS’ H-1B Policy Memo makes it clear that it intends to keep beating the U.S. IT Consulting Industry like a rented mule. Is what it actually means to focus on “Merit Based” Immigration? Has no one deliberated on the only logical implications of this short-sighted (and presumably political) action? Not only are such actions negating our own global leadership in the STEM fields, but most of the IT jobs that could be filled by H-1B consultants (who are paying U.S. taxes), could and would easily be outsourced abroad, because we are not producing sufficient numbers of American STEM graduates.
DHS Appears to Be Contemplating a Major Change to 6+ Year H-1B Extensions under AC21: Up to 1 Million H-1B Holders Could Be Affected
The Department of Homeland Security (DHS) appears to be contemplating a major change to 6+ year H-1B Extensions, an act that would have major implications in the lives of the approximately 1 Million H-1B holders in the U.S. who are waiting for a green card. To effect such a change, all DHS would need to do is continue its policy of reinterpreting any language and/or guidance it considers imprecise in a way that negatively affects the H-1B visa program. And in this case it apparently seeks to reinterpret the words “may grant” in AC21 Section 104(c), a provision that allows for up to three (3) year H-1B Extensions for certain I-140 holders (mainly Indian nationals, coincidentally). Such a reinterpretation would allow DHS to effectively neuter H-1B extensions under AC21 Section 104(c), however, because DHS does not currently appear to be able to reinterpret the word “shall” in AC21 Section 106(a), one (1) year H-1B Extensions should remain untouched and available.
A reinterpretation of AC21 Section 104(c) by DHS, if undertaken, would align harmoniously amongst its other recent attempts to make H-1Bs prohibitively complicated, expensive and more frequently subject to DHS’ scrutiny (i.e. the trending query of the month). That stated, please note that the American Immigration Lawyers Association (AILA.org) has indicated that DHS has not issued a formal announcement about any such change, that such a change would require a formal rulemaking procedure, and lastly, that such changes could be subject to litigation.
Ultimately, instead of scapegoating Srinivas from Hyderabad for daring to fill one of the 480,000 open computing jobs nationwide, we should be asking ourselves why Suzy from Ohio is majoring in Italian Art History instead of Computer Engineering. There is a very real and obvious problem with education in our country, but it is not the H-1B Program or H-1B workers, rather, the issue is that We. Are. Not. Producing. Enough. STEM. Workers.
BELOW VIA AILA.ORG
Under current law, the American Competitiveness in the Twenty-First Century Act (AC21) has two provisions, section 104(c) and section 106(a), which enable DHS to grant an H-1B extension to an H-1B worker who has reached the six-year limit if certain milestones in the LPR process have been met. These two provisions are summarized below:
H-1B EXTENSION BEYOND SIX-YEAR LIMITATION UNDER AC21 AC21 Provision Section 104(c) Section 106(a) Requirements for an H-1B Extension beyond the Sixth-Year Enables a three-year H-1B extension beyond the six-year maximum period if an H-1B worker:
(i) has an approved employment-based immigrant visa petition (I-140 petition) under the EB-1, EB-2, or EB-3 visa category, and
(ii) is eligible to be granted lawful permanent resident status but for per country limits on visa availability.
Enables a one-year H-1B extension beyond the six-year maximum period if:
(i) 365 days or more have passed since the filing of a labor certification application on the H-1B worker’s behalf, or
(ii) 365 days or more have passed since the filing of an I-140 petition.
Relevant Statutory Language Section 104(c) provides that the DHS Secretary (formerly the Attorney General) “may grant” such an extension to an eligible H-1B worker who meets the requirements of this section until the adjustment of status application has been adjudicated. Section 106(a) provides that the maximum six-year limit “shall not apply” to an H-1B worker who meets the requirements of this section and that the DHS Secretary “shall extend” the stay in one-year increments until such time as a final decision is made on the H-1B worker’s adjustment of status application.
DHS is reportedly looking at whether it can stop approving H-1B extensions for H-1B workers who meet the requirements of section 104(c), by reinterpreting the “may grant” language as discretionary, and therefore that DHS may, but is not required to, approve such H-1B extensions.
Notably, as outlined above, section 106(a) of AC21 provides that the maximum six-year period of H-1B status “shall not apply” to H-1B workers who qualify for an H-1B extension under section 106(a) and that the DHS Secretary “shall extend” the stay of H-1B workers who meet the requirements in one-year increments until such time as a final decision is made on the H-1B worker’s adjustment of status application. This provision, with its use of the word “shall,” should be read as mandatory, and thus DHS would be required to approve the extension for those H-1B workers who met the requirements of section 106(a). As such, H-1B workers who could potentially be impacted by the reported proposed changes to AC21 section 104(c) should be able to continue to extend their H-1B status under section 106(a) of AC21, provided they have met the required milestones in the LPR process. This is even true for H-1B workers who initially did not meet the requirements of section 106(a) but who now, through the passage of time, qualify for the one-year extension.”
Ashwin Sharma interviewed by WJXT Channel 4 News about the Diversity Lottery Green Card program through which the alleged NYC Terrorist entered the USA
It appears that the NYC terror suspect Sayfullo Saipov entered the US because he was randomly selected to receive a US Green Card through the Diversity Lottery, a program that, in summary, grants 50,000 visas to those from “low admission” countries. The only other eligibility factors are that one must have a high school education or 2 years of work experience.
A cruel irony is that this suspect’s “truck-driving” experience could have been what qualified him to enter the U.S. with a green card. Another is that he very likely received a green card in a matter of months while our recent Math teacher client, who has taught for 10 years in H-1B status at a public school, must wait another 11-13 years for her green card.
Immigration doesn’t have to be a zero-sum game. We don’t have to eliminate the Diversity Lottery. But can’t we increase our vetting process and require DV lottery applicants to possess a Bachelors or Masters degree or even some skill that actually benefits the U.S.?
See also: https://www.news4jax.com/news/politics/what-is-the-diversity-visa-lottery_
The Proposed “RAISE Act” would Giveth little but Taketh a lot.
The Washington Post’s David Nakamura provides details on Sens. Tom Cotton (Ark.) and David Perdue (Ga.)’s new bill entitled “Reforming American Immigration for Strong Employment [RAISE] Act”.
In a nutshell, the new bill: a) Focuses on “Merit Based” Green Cards through a Canadian style points system b) Does away with the 50K Diversity Lottery green cards, c) Caps Refugee cases to 50K a year, d) Limits or does away with Family Based Immigration for “Extended Relatives” including adult children and siblings of US Citizens (termed “Chain Migration”), and d) Reduces the total number of Green Card issued annually by about half.
AIC’s New Fact Sheet Indicates that 20-25% of all STEM Workers are Foreign Born
The American Immigration Council just released a fact sheet entitled “Foreign-born STEM Workers in the United States” and noted the importance of said workers to America,
“STEM workers are essential to the U.S. economy in terms of productivity and innovation. As of 2015, the foreign-born comprised one-fifth to one-quarter of the STEM workforce, depending on what occupations are included within the definition of STEM. Notably, the total number of foreign-born STEM workers in the U.S. workforce has increased dramatically since 1990, both in absolute numbers and as a share of the total workforce. This is true at the national and state levels. Additionally, foreign-born workers make up an increasing share of STEM workers in all occupational categories.”
To view the fact sheet in its entirety, see:
- Foreign-born STEM Workers in the United States (Fact Sheet, June 2017)
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).
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:
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”.
Harvard Law School Clinic releases report on effect of Trump’s executive orders on Asylum Seekers – urges Canada to accept Asylum Seekers rejected by U.S.
Harvard Law School’s Immigration and Refugee Clinical Program has released a report on the effects of President Trump’s executive orders on people seeking asylum protection in the United States under long-standing provisions of U.S. and international law, including refugee law and the Convention Against Torture.
USCIS Turns Away Highly Valuable Revenue Stream by Temporarily Suspending Premium Processing for FY2019 H-1B Cap Petitions