Trump Admin’s Proposed Policy Entitled “Strengthening the H-1B Nonimmigrant Visa Classification Program” Set to Target the H-1B Program
Bloomberg recently reported that the Administration plans to remodel the H-1B program eligibility criteria from a baccalaureate degree to a discretionary “Best and Brightest” requirement, perhaps more in line with the O-1 Extraordinary Ability program. This would impose substantial and new burdens on H-1B seekers, particularly on IT professionals, and effectively change the H-1B program as we know it.
“The Trump administration plans to narrow the definition of specialty occupation to limit the use of H-1B visas, but it may be limited in how far it can go.
A proposal expected in January from the U.S. Citizenship and Immigration Services would refine the meaning of specialty occupation “to focus on obtaining the best and the brightest foreign nationals via the H-1B program.”
The proposed regulation “would be the biggest changes to the H-1B program since 1990,” when the visa was overhauled by Congress, Sarah Pierce, a policy analyst with the Migration Policy Institute, told Bloomberg Law.
The agency could block entry-level jobs from the program while redefining “employer-employee relationship” to severely curtail staffing companies’ access to the visas.”
Inserting the otherwise innocuous phrase “Best and the Brightest” (“B&B”) within this proposed rule does nothing to alleviate the suspicion with which it is met. This is understandable, considering that for the last 1.5 years this Administration has tasked USCIS with issuing “pop goes the weasel” style policy changes and multiple “reinterpretations” of existing laws and guidance. The ultimate result has been a targeted effort to reduce the use of H-1Bs visas by Indian IT professionals and their employers. IT jobs paying Level 1 prevailing wages and common occupational classifications such as Computer Programmers and Computer Systems Analysts now face an almost automatic presumption of ineligibility. Third-party job site consulting assignments are scrutinized more heavily and are more likely to be denied. Deference is no longer given to extensions of previously approved H-1B cases, even if there have been no changes in employment. The standard of evidence in filing H-1Bs seems to have risen overnight from the “Preponderance of the Evidence” to “Beyond a Shadow of a Doubt”.
As a result of USCIS’s recent changes to the H-1B program, Requests for Evidence and denial rates for IT workers have increased nationwide. But this new proposed policy promises to make matters even worse, if that’s possible.
EB-1. For October, EB-1 Worldwide along with all other countries except China and India, advances ten months to April 1, 2017.
EB-2 Worldwide and EB-3 Worldwide will return to current in October and will remain current for the foreseeable future and well into the next calendar year.
EB-2 China and EB-3 China. While EB-2 China recovers to April 1, 2015 in October, it will not surpass the EB-3 China final action date, which advances to June 1, 2015. It is unclear whether EB-3 China’s two-month lead will be significant enough to spur downgrade demand. If there are not as many downgrades, EB-3 China could advance more rapidly than expected.
EB-2 India and EB-3 India. EB-2 India advances to March 26, 2009 in October, with EB-3 India trailing behind by less than three months at January 1, 2009. Based on the dates for filing and depending on the level of demand in each of these categories, it is possible that EB-3 India may surpass EB-2 India at some point this fiscal year.
EB-3 Philippines and Other Workers Philippines will recover to June 1, 2017 in October. Only minimal movements expected during the first quarter of the fiscal year.
EB-4. EB-4 Mexico will fully recover in October to its June Visa Bulletin date of October 22, 2016, EB-4 India will return to current, and EB-4 El Salvador, Guatemala and Honduras remain at February 15, 2016 in October. There will be forward movement in EB-4 El Salvador, Guatemala and Honduras this fiscal year, but anything more than minimal movement is unlikely in Q1.
EB-4 India. It is expected that this category will be subject to a final action date again, but that will not likely happen until late in the fiscal year.
EB-5 Non-Regional Center for China and Vietnam will advance to August 15, 2014 and January 1, 2016 respectively in October.
EB-5 China. Demand remains high, not much movement in this category throughout the fiscal year. EB-5 Vietnam, in contrast, is likely to advance modestly early in the fiscal year until it reaches its per country limit, at which time, its final action date will track EB-5 China.
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:
The Petitioner, a manufacturer and wholesaler of industrial power generators, seeks to temporarily employ the Beneficiary as a “Senior Product Development Engineer – R&D” under the L-1B nonimmigrant classification for intracompany transferees. Immigration and Nationality Act (the Act) Â§ 101(a)(15)(L), 8 U.S.C. Â§ 1101(a)(15)(L). The L-1B classification allows a corporation or other legal entity (including its affiliate or subsidiary) to transfer a qualifying foreign employee with “specialized knowledge” to work temporarily in the United States.
The Director of the California Service Center denied the petition, concluding that the Petitioner did not establish, as required, that the Beneficiary possesses specialized knowledge, that he was employed abroad in a capacity that was managerial, executive, or involved specialized knowledge, or that he would be employed in a specialized knowledge capacity in the United States.
On appeal, the Petitioner contends that the Director overlooked key evidence and that the denial decision was factually flawed, improperly reasoned, and did not apply the preponderance of the evidence standard to the case.
Upon de nova review, we will sustain the appeal.
A beneficiary is considered to be serving in a capacity involving specialized knowledge with respect to a company if the beneficiary has special knowledge of the company product and its application in international markets or has an advanced level of knowledge of processes and procedures of the company. Section 214(c)(2)(B) of the Act, 8 U.S.C. Â§ 1184(c)(2)(B).
The Beneficiary has been employed by the Petitioner’s parent company as a product development engineer for more than one year and the record establishes that he was required to complete at least 750 hours of internal training followed by months of supervised on-the-job experience in the company’s products, manufacturing processes, research and development and prototyping techniques, and proprietary digital control technologies prior to receiving a promotion to this position. The Petitioner has submitted detailed, consistent, and credible descriptions of his training and experience which show how he gained specialized knowledge in these areas which could not be readily transferred to another employee in the Petitioner’s industry, is distinct in comparison to that possessed by other product development engineers within the foreign company, and is advanced compared to that possessed by theÂ Petitioner’s current U.S.-based engineers. The Petitioner has also explained and documented the Beneficiary’s special assignments, which included developing a method to streamline the design and prototyping process for new products, and performing ongoing research and development of the company’s products to meet increasingly stringent environmental emissions standards. The Petitioner described in detail why the Beneficiary’s prior assignments make him uniquely qualified to undertake the offered position in the United States.
Further, the record sufficiently demonstrates that the proposed position in the United States requires an employee who possesses the Beneficiary’s specialized knowledge of the company’s products, research and development processes, and manufacturing techniques. The Petitioner has explained and documented the imminent expansion of its U.S. manufacturing capabilities, which will require the deployment of new equipment and machinery currently used by its foreign parent company, extensive research and development work associated with the introduction of a new product line, redesign of existing products to comply with new U.S. emissions standards, and the training of new U.S. staff who will be hired to support these increased manufacturing and product development activities. It has shown that the Beneficiary’s specialized knowledge, gained within the foreign parent’s headquarters, will be instrumental to the U.S. company’s expansion efforts.
The Petitioner has established that the Beneficiary possesses specialized knowledge, and that he has been and will be employed in positions requiring specialized knowledge.
ORDER: The appeal is sustained.
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:
USCIS Can Now Deny Work Visa and Green Card Applications Without Providing an Opportunity to Correct
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.
- 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.
- 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:
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.
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 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.
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.”