USCIS Can Now Deny Work Visa and Green Card Applications Without Providing an Opportunity to Correct
VIA AILA.org
What Is It?
- On July 13, 2018, USCIS issued new guidance regarding adjudicator discretion to deny a request for an immigration benefit without first issuing a Request for Evidence (RFE) or a Notice of Intent to Deny (NOID).
- The new policy makes it easier for USCIS to deny an application or petition without first issuing an RFE or NOID, by restoring “full discretion” to do so. For example, rather than giving the person the opportunity to fix what might be a simple filing error, adjudicators can deny a benefit if any of the required initial evidence is missing from the filing.
- Prior USCIS policy limited adjudicators’ ability to deny a case without first giving the applicant or petitioner an opportunity to respond. A June 3, 2013 memo instructed adjudicators to issue an RFE if initial evidence was missing or if the evidence submitted fell short of the applicable standard of proof, unless the adjudicator determines there is “no possibility” that additional evidence might cure the deficiency.
- The July 13, 2018, policy supersedes the 2013 guidance and takes effect on September 11, 2018.
Who Is Impacted?
- All applicants and petitioners who file immigration benefit applications with USCIS, including applications for naturalization, family-based immigrant petitions, temporary work visa petitions, immigrant petitions filed under the Violence Against Women Act (VAWA), and permanent residency (“green card”) applications, on or after September 11, 2018, will be impacted by this new policy.
- Immigration law is already unforgiving but this will take it to a new level. Applicants and petitioners who do not have a lawyer to advise them will feel this most heavily. They could now face harsh consequences in the form of a denial of their immigration benefit application if they inadvertently make an innocent mistake on the application or misunderstand an evidentiary requirement.
Why Is This Bad Policy?
- The new policy imposes harsh consequences on individuals by making it easier for USCIS to deny an application without first providing an opportunity to correct an innocent mistake, submit a missing piece of evidence, or provide an explanation that would substantiate eligibility for the immigration benefit.
- Petitioners and applicants will be forced to re-submit their benefits requests, which for all means having to repay steep immigration fees and for some means losing employment, travel opportunities, and/or their place in the heavily backlogged visa queue.
- When you couple this new policy with a June 28, 2018 memo mandating USCIS to issue Notices to Appear (NTA) in far more immigration cases than ever before, even more individuals could be shuttled into immigration court removal proceedings.
- Read together, USCIS could deny an immigration benefit application without first issuing an RFE or NOID, and if the individual is no longer maintaining status at the time of denial, USCIS may issue an NTA to place the individual in removal proceedings.
- These policies will have devastating effects on all types of immigration benefits applicants, including high-skilled workers, families, students, and survivors of domestic violence and other crimes.
- This is the latest effort to shift USCIS away from its service-oriented mission and turn it into another enforcement component of DHS, contrary to the will of Congress, and to the Homeland Security Act of 2002, which mandated USCIS focus on benefits adjudications and leave immigration enforcement to CBP and ICE.
Chilling Effect
- This new policy memorandum is another brick in the administration’s invisible wall that is slowing and restricting legal immigration to the United States by making it harder for immigrants to apply legally for immigration benefits.
- By making the legal immigration process more burdensome and uncertain, the new policy will harm U.S. citizens seeking to sponsor their relatives through the family-based system, individuals seeking asylum and humanitarian protection in the United States, permanent residents applying for naturalization, and U.S. companies seeking to hire and retain top talent from across the globe.
More Background:
- An RFE is a written notice issued by USCIS to request missing initial or additional evidence from applicants or petitioners who have filed for an immigrant benefit.
- A NOID is a written notice issued by USCIS notifying the applicant or petitioner of the agency’s intent to deny the immigrant benefit requested and providing the applicant or petitioner the opportunity to explain why a denial is not merited.
USCIS plans to increase the Premium Processing fee (Form I-907) from $1225 to $1410 effective 10/01/2018
It appears that USCIS will increase the Premium Processing fee (Form I-907) from $1225 to $1410 effective 10/01/2018.
See Unpublished/Advance Rule:
https://www.federalregister.gov/documents/2018/08/31/2018-19108/adjustment-to-premium-processing-fee
USCIS Extends and Expands Suspension of Premium Processing for H-1B Petitions to Reduce Delays
USCIS announced today that it is extending the previously announced temporary suspension of premium processing for cap-subject H-1B petitions and, beginning 9/11/18, will be expanding this temporary suspension to include certain additional H-1B petitions. The suspension is expected to last until 2/19/19.
Report: F-1 OPT Numbers Significantly Increased from 2004-2016
I was interviewed by the San Francisco Chronicle’s Trisha Thadani for her well-researched article regarding the F-1 OPT program and the latest results of the Pew Research Center’s 12-year period study into this program, released today, in which it found that “Federal training program sees 400% increase in foreign students graduating and working in STEM fields from 2008 to 2016“.
Though it looks as if we can expect a further hobbling of the F-1 OPT program, I believe that such an act would only damage our nation’s precarious international lead in Science, Technology, Engineering and Mathematics (STEM). There is a very real and obvious workforce problem in our country, for which the OPT or the H-1B is a temporary salve: not the cause. Rather, the issue is that among the tens of thousands of things that America has stopped manufacturing en masse include American STEM Graduates. That is the single biggest reason why half of our Ph.D. candidates as well as a quarter of our STEM workforce are foreign born.
Ultimately, instead of scapegoating “Srinivas from Hyderabad” for daring to pay U.S. tuition fees, studying hard, and filling one of the 480,000 open computing jobs nationwide in OPT or H-1B status, we should be asking ourselves why “Suzy from Ohio” is majoring in Italian Art History or Anthropology or Philosophy instead of Computer Engineering. Anti-immigrationists must stop playing the victim, stop shifting the blame onto the voiceless, and start taking personal responsibility, the American Way: by enrolling themselves or their own children into Mathematics, Biochemistry, Engineering, or Information Technology programs.
Trump administration indicates that it will terminate Work Permits (EADs) for H-4 Spouses of H-1B Workers
USCIS Turns Away Highly Valuable Revenue Stream by Temporarily Suspending Premium Processing for FY2019 H-1B Cap Petitions
“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.”
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.
Trump Admin Scraps Proposed Major Policy Change Regarding 6+ Year H-1B Extensions
The Trump Administration appears to have been pressured into scrapped its proposed major policy change on 6+ year H-1B Extensions.
Jonathan Withington, chief of media relations for USCIS indicated to mcclatchydc.com that, “…USCIS is not considering a regulatory change that would force H-1B visaholders to leave the United States by changing our interpretation of section 104(c) of AC-21, which provides for H-1B extensions beyond the 6-year limit…Even if it were, such a change would not likely result in these H-1B visa holders having to leave the United States because employers could request extensions in one-year increments under section 106(a)-(b) of AC21 instead.”
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.”
USCIS Clarifies Definition of “Functional Manager” in EB-1 / L-1A Cases by Designating Matter of G-., Inc as an Adopted Decision
Matter of G-. involved a multinational technology-based product development corporation that had filed an an EB-1 I-140 (Multinational Manager) petition for an employee who would be engaged as a “Functional Manager”, in other words, one who would be primarily managing an essential function as opposed to managing personnel. The employer’s I-140 was denied by the Director of the Nebraska Service Center on the basis that the employer had not established that it would employ the Beneficiary in a managerial capacity.
The employer appealed the decision, indicating that the Director had erroneously misstated facts and abused his discretion in denying the petition. The appeal was sustained by the Administrative Appeals Office (AAO), which held that the employer had indeed sufficiently established that its employee would be engaged a qualifying “managerial capacity” and that he would be primarily managing an “essential function” within the organization.
The AAO’s decision was adopted in a USCIS policy memorandum and will be used to clarify the somewhat imprecise definition of a “Functional Manager” in EB-1 cases (and likely L-1A as well). In summary, the decision indicates that:
(1) To support a claim that a beneficiary will manage an essential function, the petitioner must establish that the function is a clearly defined activity and is core to the organization.
(2) Once the petitioner demonstrates the essential function, it must establish that the beneficiary’s position meets all criteria for “managerial capacity” as defined in 101(a)(44)(A) of the Act. Specifically, it must show that the beneficiary will: primarily manage, as opposed to perform, the function; act at a senior level within the organizational hierarchy or with respect to the function managed; and exercise discretion over the function’s day-to-day operations.
The decision’s clarification ought to be somewhat helpful to employers and beneficiaries, but it is too early to say, given that every change/update to “Merit Based” immigration this year has been substantially negative.
Matter of G- Inc (PDF)
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.”
Two of our Appeals of L-1B Specialized Knowledge Worker Denials Were Sustained by the AAO
Three months ago, two L-1B Specialized Knowledge Worker petitions I filed for a client in the manufacturing sector were erroneously denied by USCIS’s California Service Center. However, both of my appeals of these denials were expeditiously sustained/approved by the AAO, which validated our belief that USCIS’s CSC had improperly denied these cases.
Unfortunately, victories as in this case are quite rare: only six other L-1B appeals have been sustained by the AAO thus far in 2018.
In this particular case, my client’s failure to secure the temporary transfer of two of its L-1B Specialized Knowledge Engineers would have had a catastrophic impact on its US manufacturing operations, in which it has already invested tens of millions of dollars. Dozens of its well-paid American employees would have likely seen their jobs transferred to China instead. Though this possibility was thankfully averted by the AAO on an expedited basis a few days ago, USCIS’s error required the Petitioner to waste its time and money while undermining its confidence in our immigration system.
The AAO decisions summary:
I anticipate that USCIS’s efforts to halt or only grudgingly approve legitimate merit-based immigration will continue to discourage outside investment and immigration into our manufacturing sector. Such short-sighted policies are at odds with our history, as immigrants have been key contributors in this field. It was Danish-born Bill Knudsen who architected America’s manufacturing transformation at the outset of World War 2 into the famed “Arsenal of Democracy”. But even Knudsen had available a significant retail manufacturing sector to transform: many of our factories have since packed up and left for Asia because we are no longer only game in town. Therefore, we can now ill-afford to set red-tape or brick walls in the face of companies, like my client, who want to invest in not only “Buying American” and “Hiring American”, but also “Making American”.
Both decisions were published on USCIS’s website:
• https://www.uscis.gov/…/Decisions_Iss…/SEP112018_02D7101.pdf
• https://www.uscis.gov/…/Decisions_Iss…/SEP112018_03D7101.pdf