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USCIS Resumes Premium Processing for All Petitioners Seeking H-1B Visas

USCIS indicates that it has “resumed premium processing today for all H-1B visa extension of stay petitions. Premium processing is now available for all types of H-1B petitions.”  This includes H-1B amendments, extensions, transfers etc.

How the Trump Admin’s ‘Merit-Based’ Immigration System actually works: Kill or Handicap the H-1B Visa

Reuters has a great piece on how Trump’s infamous ‘Merit-Based’ Immigration System actually works – issue a record # of queries, delays and denials on US companies’ petitions filed for their professional employees: Doctors, Engineers, IT and others. That these substantial changes impeding and eliminating aspects of the H-1B program have been undertaken without Congressional authorization is apparently of little concern to the Admin.

“Data provided by U.S. Citizenship and Immigration Services shows that between Jan. 1 and Aug. 31, the agency issued 85,000 challenges, or “requests for evidence” (RFEs), to H-1B visa petitions – a 45 percent increase over the same period last year. The total number of H-1B petitions rose by less than 3 percent in the same period.”
The article also touches on the newly trending issue of “Level 1 Wage” queries which essentially involves USCIS weaponizing, without notice, a US DOL regulation on prevailing wages (the latter not intended nor written to serve in the capacity USCIS is using it for):

In addition to querying applications more often, the Trump administration is targeting entry-level jobs offered to skilled foreigners. The lawyers say this violates the law governing H-1Bs, because it allows for visa holders to take entry-level jobs.

Several attorneys said they view the increase in challenges and focus on entry-level jobs as a stealth campaign by the administration against the H-1B program in the absence of public regulatory changes or changes passed by Congress, which could be debated and decided in the open.

As I’ve stated before: H-1B workers have filled our massive skills gap and created intellectual property, businesses and jobs for America. They are Makers, not Takers.  It is therefore particularly disheartening to witness illogical attempts to reject these professionals, especially when other nations are outcompeting the U.S. in eagerly recruiting STEM workers.

As a Country, we need to shake off the illusion that we can “coast” through this increasingly competitive world on the basis of our previous generation’s achievements.  The future of our Nation and our Industry lie in our leadership within the STEM sectors.  Instead of rejecting or delaying tens of thousands of these high-skilled H-1B immigrants every year due to insufficient H-1B Cap numbers, newly created/surprise “Level 1” wage issues, or making these professionals wait up to 12 years for a green card, we should be bending over backwards to facilitate their immigration.

USCIS Resumed Premium Processing H-1B Cap Petitions Subject to the Fiscal Year year (FY) 2018 Cap on September 18, 2017

VIA USCIS.GOV

WASHINGTON — U.S. Citizenship and Immigration Services (USCIS) resumed premium processing today for all H-1B visa petitions subject to the Fiscal Year year (FY) 2018 cap. The FY 2018 cap has been set at 65,000 visas. Premium processing has also resumed for the annual 20,000 additional petitions that are set aside to hire workers with a U.S. master’s degree or higher educational degree.

H-1B visas provide skilled workers for a wide range of specialty occupations, including information technology, academic research, and accounting. When a petitioner requests the agency’s premium processing service, USCIS guarantees a 15-day processing time. If the 15- calendar day processing time is not met, the agency will refund the petitioner’s premium processing service fee and continue with expedited processing of the application. This service is only available for pending petitions, not new submissions, since USCIS received enough petitions in April to meet the FY 2018 cap.

In addition to today’s resumption of premium processing for H-1B visa petitions subject to the FY 2018 cap, USCIS previously resumed premium processing H-1B petitions filed on behalf of physicians under the Conrad 30 waiver program, as well as interested government agency waivers and for certain H-1B petitions that are not subject to the cap. Premium processing remains temporarily suspended for all other H-1B petitions, such as extensions of stay.

USCIS plans to resume premium processing for all other remaining H‑1B petitions not subject to the FY 2018 cap, as agency workloads permit. However, remaining petitioners may submit a request to expedite their application if they meet the specific agency criteria. USCIS reviews all expedite requests on a case-by-case basis, and requests are granted at the discretion of the office leadership.

USCIS will release future announcements when we begin accepting premium processing for other H-1B petitions, not subject to the FY 2018 cap.

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:

USCIS Completes Data Entry for FY2018 H-1B Cap Subject Petitions

USCIS announced that it has completed data entry of all FY2018 H-1B cap-subject petitions selected in the computer-generated random process. USCIS will now begin returning all H-1B cap-subject petitions that were not selected.

What’s in the new “Buy American, Hire American” Executive Order?

  • On April 18, 2017, President Trump signed a new Executive Order, “Buy American and Hire American.” In the “Hire American” portion of the order, Trump announced he was directing DOL, DOJ, DHS, and DOS to review the current laws governing the H-1B program and suggest changes to prioritize the most skilled and highest paid positions. The President also indicated he was directing federal agencies to review all visa programs and take prompt action to crack down on fraud and abuse in order to protect U.S. workers.

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AILA: Impact of “Hire American” Provisions in New Executive Order Remains to Be Seen

WASHINGTON, DC – Today, President Trump signed his latest Executive Order “Buy American and Hire American.” The American Immigration Lawyers Association (AILA) observed that while today’s announcement reflects the administration’s desire to move toward reforms to the H-1B program, there will be no immediate changes or impacts on H-1Bs. Simply put, it appears that the agencies are asked to review policies related to all visa programs and recommend changes to root out “fraud and abuse,” and to propose additional reforms so that H-1B visas are awarded to the most skilled or highest-paid applicants.

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Update on H-1B Cap Subject Petitions for FY2018: 199,000 Petitions Filed

  • On April 7, 2017, USCIS announced that it had received enough H-1B petitions to reach the statutory cap of 65,000 H-1B visas and 20,000 advanced degree visas for FY2018.
  • On April 17, 2017, USCIS announced that it had received 199,000 H-1B petitions during the filing period, which began April 3. This represents a 15.7 percent decrease from the 236,000 petitions that USCIS received during last year’s filing period.

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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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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.

Indian Engineer’s Death could leave Wife Without Legal Status

Mr. Srinivas Kuchibhotla, the victim of a hate crime in Kansas City, appears to have held an H-1B professional work visa. Unfortunately, with his death, his wife’s H-4 Dependent visa (which Ms. Dumala appears to hold) would normally be terminated by U.S. Immigration. We should urge USCIS and Congress to offer her and anyone else affected by such a tragic situation a “Survivor” H-4 visa option to continue to reside in the U.S. following the death of an H-1B family member, if they wish to.

“I don’t know if this is the right platform to talk about this. But, the government has to make sure that I can come back to this country at my will to pursue his dreams of me being successful…me being successful in any field that I choose. And I have to fulfil his dreams, right here where he started.” – Ms. Sunayana Dumala

Further, because Mr. Kuchibhotla in his professional capacity as a Garmin Engineer was doing his part to “Make America Great Again”, we ask the @realDonaldTrump to issue a strong condemnation of the racist and xenophobic motivations that led to this violence.

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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