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USCIS Turns Away Highly Valuable Revenue Stream by Temporarily Suspending Premium Processing for FY2019 H-1B Cap Petitions

USCIS announced that it will again suspend premium processing for H-1B Cap Subject cases until Sept. 10, 2018 in an effort, it claims, to “reduce overall H-1B processing times“.  The update also warns that it will deny any H-1B Cap Subject petition that provide one combined check for the H-1B and Premium Processing fees (even accidentally).
USCIS’ decision is illogical because it is rejecting a significant and valuable revenue stream which it sorely needs for its operations to actually reduce overall processing times.  USCIS is almost entirely funded by filing fees such as the $1225.00 premium processing fee, to the extent that when the rest of the Federal Government shuts down, USCIS doesn’t.  And currently, USCIS’ need for said revenue is even more critical considering that its staff and officers have been called upon to do increasingly more work in the adjudication process with regards to the intensity of scrutiny and the number of cases, all the while remaining consistent with each of the recent Policy Memos that have upended existing guidance/definitions relied upon by everyone, even AOs.
Turning away premium processing fees won’t help USCIS address backlogs in any meaningful or permanent way.  But creating an efficient electronic filing system will.  One of the foundational (but rarely referenced) reasons for USCIS’ delays and backlogs though is the fact that it has flushed three (3) billion dollars of funding along with 10+ years down the drain in its failed attempt to go digital through its “Transformation Program” which promised to improve service, efficiency and security, but the development of which the U.S. Government Accountability Office identified as early as 2007 as, “unfocused, conducted in an ad hoc and decentralized manner, and, in certain instances, duplicative”  Last year, the GAO presented a summary on the issues with the program:
“The U.S. Citizenship and Immigration Services’ (USCIS) most recent cost and schedule baseline, approved in April 2015, indicates that its Transformation Program will cost up to $3.1 billion and be fully deployed no later than March 2019. This is an increase of approximately $1 billion with a delay of more than 4 years from its initial July 2011 acquisition program baseline. In addition, the program is currently working to develop a new cost and schedule baseline to reflect further delays. Due to the program’s recurring schedule delays, USCIS will continue to incur costs for maintaining its existing systems while the program awaits full implementation. Moreover, USCIS’s ability to achieve program goals, including enhanced national security, better customer service, and operational efficiency improvements, will be delayed.
Given the history of development for the Transformation Program and the subsequent commitment of additional resources for a new system, it is more important than ever that USCIS consistently follow key practices in its system development efforts. For example, the program has already reported realizing risks associated with deploying software that has not been fully tested, such as system bugs, defects, and unplanned network outages. If the agency does not address the issues GAO has identified in prior work, then it will continue to experience significant risk for increased costs, further schedule delays, and performance shortfalls.”
It is ironic that though USCIS has failed to create a functioning computerized system despite losing $3,000,000,000.00 over 10+ years, it has had no problems issuing unprecedented levels of queries and denials on H-1B petitions for IT professionals on the basis that their jobs aren’t “Specialty Occupations”.

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.”

More than 300,000 Central American and Haitian Immigrants to Lose TPS: May Soon Face Deportation

New York Magazine reports that US Dept. of State has advised US Dept. of Homeland Security officials this week that the 300,000+ Central Americans and Haitians who are currently in the United States in a Temporary Protected Status will no longer be protected from deportation.  This announcement arrives days prior to a highly anticipated DHS announcement on a decision to renew said TPS program.

“Per a letter from Secretary of State Rex Tillerson to DHS secretary Elaine Duke this week, the State Department believes that conditions in Central America and Haiti have now improved to the point that TPS designation is no longer necessary. The legally required assessment came as the DHS prepares to announce by Monday whether it will renew TPS protection for more than 60,000 Honduran and Nicaraguan immigrants in early January. Tillerson’s letter doesn’t bode well for them or for two other large groups of American residents: nearly 60,000 Haitian immigrants with TPS whose protection expires in late January, and almost 200,000 Salvadorans whose protection expires next March.

Some of these immigrants have been in the U.S. for as long as two decades, and many own homes and businesses. One study has estimated that TPS holders have almost 275,000 U.S.-born children in their families. Should the designations not be renewed, these immigrants would have at least six months to get their affairs in order and leave the country. If they chose to stay, they could face arrest and deportation.”

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Delay in NSC Processing of H-4/EAD Applications Filed with Premium Processing H-1Bs

Via AILA.org

The Nebraska Service Center (NSC) has advised that, due to the high volume of incoming premium processing requests, H-4 I-539 and H-4 I-765 EAD applications that are concurrently filed with premium H-1B petitions before the April 3, 2017, premium processing suspension may not be adjudicated concurrently with the I-129 and within the prescribed 15 days. Due to the rapid influx of premium requests, I-129 adjudicators are focusing first on the I-129 so that it can be processed in accordance with the premium requirements. When a decision is made on the I-129, any H-4 and EAD applications are sent to another team, which should adjudicate them within a week or two. Once the surge is over NSC expects to resume fully working all applications submitted concurrently with the I-129.

NSC has advised that if no notice has been received on a riding I-539 or I-765 by the end of April, applicants or their attorneys can contact the National Customer Service Center to place a Service Request.

Statement From Secretary Kelly On Recent ICE Enforcement Actions Via DHS.gov

Via DHS.gov

Release Date:
February 13, 2017

For Immediate Release
Office of the Press Secretary
Contact: 202-282-8010

WASHINGTON – Last week, U.S. Immigration and Customs Enforcement (ICE) launched a series of targeted enforcement operations across the country. These operations targeted public safety threats, such as convicted criminal aliens and gang members, as well as individuals who have violated our nation’s immigration laws, including those who illegally re-entered the country after being removed and immigration fugitives ordered removed by federal immigration judges.

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Federal Court Suspends President Trump’s Executive Order banning Muslims and Refugees, CBP & DOS to Resume Business as Usual

On February 3, 2017, the United States District Court for the Western District of Washington issued a temporary restraining order prohibiting the federal government from enforcing Sections 3(c) [90-day travel ban on “immigrants and nonimmigrants” from designated countries], 5(a) [120-day ban on U.S. refugee program], 5(b) [prioritization of certain refugee claims], 5(c) [indefinite suspension of Syrian refugee admissions], and 5(e) [case-by-case refugee admissions] of the January 27, 2017 Executive Order on a nationwide basis. All U.S. land and air ports of entry are prohibited from enforcing these portions of the EO until further order from the court.

Customs and Border Protection: The American Immigration Lawyers Association has been advised that all CBP Field Offices have been instructed to immediately resume inspection of travelers under standard policies and procedures. All airlines and terminal operators have been notified to permit boarding of all passengers without regard to nationality.

Department of State: DOS has confirmed that assuming there were no other issues in the case, provisionally revoked visas have been reversed and are valid again.

The Trump administration declared its intention to file an emergency stay of the order “at the earliest possible time.”

DHS OIG: Inspector General Announces Review of Implementation of the President’s Executive Order

The Department of Homeland Security Office of Inspector General (“DHS OIG”) announced late Wednesday that it will review DHS’ implementation of “Protecting the Nation from Terrorist Entry into the United Stated by Foreign Nations” and adherence to court orders and allegations of individual misconduct, initiated due to congressional request and whistleblower and hotline complaints.

Link to PDF

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Transcript of Media Availability on Executive Order with Secretary Kelly & DHS Leadership

Via DHS.gov

Release Date:

January 31, 2017

For Immediate Release
Office of the Press Secretary
Contact: 202-282-8010

WASHINGTON – Today Secretary of Homeland Security John Kelly participated in a media availability alongside U.S. Customs and Border Protection (CBP) Acting Commissioner Kevin McAleenan, U.S. Immigration and Customs Enforcement (ICE) Acting Director Thomas Homan, and DHS Office of Intelligence and Analysis (I&A) Acting Undersecretary David Glawe to discuss the operational implementation of the president’s executive orders. Following is a transcript of their remarks:

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48 Hours Later, Where Things Stand on the January 27 Executive Order

Via AILA

On January 27, 2017, President Trump issued an Executive Order (EO) entitled “Protecting the Nation from Foreign Terrorist Entry into the United States.” People all over the United States are rallying in opposition to this EO and showing their support for all of those individuals affected by President Trump’s EOs. AILA lawyers across the country are showing up en masse to provide legal support to those detained, as well as to families and friends waiting for their loved ones to be released.

Last night, lawyers filed actions across the country to halt the January 27 EO. A federal judge in the Eastern District of New York issued the first order, granting a nationwide stay of removal preventing deportation for individuals with valid visas and approved refugee applications affected by the EO. The next decision came out of a federal court in Massachusetts – it went a bit further and barred federal officials from detaining or removing individuals subject to the EO. Two other courts also issued rulings. In a case filed in Virginia, the court ordered federal officials to provide lawyers access to “all legal permanent residents being detained at Dulles International Airport” and barred officials from deporting covered individuals for the next seven days. In the case out of Washington State, the federal judge barred the federal government from deporting two unnamed individuals from the United States.

Lawyers in the New York case are seeking clarification from the court.

The Department of Homeland Security put out a statement early today stating only that the agency “will comply with judicial orders.”

More clarity was provided by Secretary Kelly of the Department of Homeland Security, who released a press statement this evening clarifying how the EO applies to LPRs: “I hereby deem the entry of lawful permanent residents to be in the national interest.”

USCIS Publishes Final Rule For Certain Employment-Based Immigrant and Nonimmigrant Visa Programs

Via USCIS.gov

USCIS has published a final rule to modernize and improve several aspects of certain employment-based nonimmigrant and immigrant visa programs. USCIS has also amended regulations to better enable U.S. employers to hire and retain certain foreign workers who are beneficiaries of approved employment-based immigrant visa petitions and are waiting to become lawful permanent residents. This rule goes into effect on Jan. 17, 2017.

Among other things, DHS is amending its regulations to:

  • Clarify and improve longstanding DHS policies and practices implementing sections of the American Competitiveness in the Twenty-First Century Act and the American Competitiveness and Workforce Improvement Act related to certain foreign workers, which will enhance USCIS’ consistency in adjudication.
  • Better enable U.S. employers to employ and retain high-skilled workers who are beneficiaries of approved employment-based immigrant visa petitions (Form I-140 petitions) while also providing stability and job flexibility to these workers. The rule increases the ability of these workers to further their careers by accepting promotions, changing positions with current employers, changing employers and pursuing other employment opportunities.
  • Improve job portability for certain beneficiaries of approved Form I-140 petitions by maintaining a petition’s validity under certain circumstances despite an employer’s withdrawal of the approved petition or the termination of the employer’s business.
  • Clarify and expand when individuals may keep their priority date when applying for adjustment of status to lawful permanent residence.
  • Allow certain high-skilled individuals in the United States with E-3, H-1B, H-1B1, L-1 or O-1 nonimmigrant status, including any applicable grace period, to apply for employment authorization for a limited period if:
  1. They are the principal beneficiaries of an approved Form I-140 petition,
  2. An immigrant visa is not authorized for issuance for their priority date, and
  3. They can demonstrate compelling circumstances exist that justify DHS issuing an employment authorization document in its discretion.

Such employment authorization may only be renewed in limited circumstances and only in one year increments.

  • Clarify various policies and procedures related to the adjudication of H-1B petitions, including, among other things, providing H-1B status beyond the six year authorized period of admission, determining cap exemptions and counting workers under the H-1B cap, H-1B portability, licensure requirements and protections for whistleblowers.
  • Establish two grace periods of up to 10 days for individuals in the E-1, E-2, E-3, L-1, and TN nonimmigrant classifications to provide a reasonable amount of time for these individuals to prepare to begin employment in the country and to depart the United States or take other actions to extend, change, or otherwise maintain lawful status.
  • Establish a grace period of up to 60 consecutive days during each authorized validity period for certain high-skilled nonimmigrant workers when their employment ends before the end of their authorized validity period, so they may more readily pursue new employment and an extension of their nonimmigrant status.
  • Automatically extend the employment authorization and validity of Employment Authorization Documents (EADs or Form I-766s) for certain individuals who apply on time to renew their EADs.
  • Eliminate the regulatory provision that requires USCIS to adjudicate the Form I-765, Application for Employment Authorization, within 90 days of filing and that authorizes interim EADs in cases where such adjudications are not conducted within the 90-day timeframe.

F-1 OPT I-765 RFE Issue: How a DSO can change students’ 17 month OPT extensions to 24 months

The Department of Homeland Security’s website notes that subsequent to USCIS changes to STEM optional practical training (OPT) regulations, the Student and Exchange Visitor Information System (SEVIS) Release 6.26 was deployed which, while not providing a fix addressing all of USCIS’ changes, will help solve some issues presented by the new regulations, including document generation for F-1 OPT students who have applied for an EAD/I-765 so they may respond to USCIS’ requests for evidence.  The update also:

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