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Is Hillary Clinton anti-H-1B?

Vox news reports the disappointing news that Hillary Clinton “just put a stake” through the idea of “expanding visas to allow more high-skilled workers to come to the United States” in favor of “unauthorized immigrants and their families (millions of whom, of course, are US citizens and voters)“.  However, it should be noted that Clinton did not address any proposed changes to the H-1B or L-1 programs with specificity, which does leave room for hope for the U.S. technology sector.

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USCIS has Reached the Congressionally mandated H-1B cap for fiscal year (FY) 2017

Via USCIS.gov

Release Date: April 07, 2016

WASHINGTON – U.S. Citizenship and Immigration Services (USCIS) has reached the congressionally mandated H-1B cap for fiscal year (FY) 2017. USCIS has also received more than the limit of 20,000 H-1B petitions filed under the U.S. advanced degree exemption.

USCIS will use a computer-generated process, also known as the lottery, to randomly select the petitions needed to meet the caps of 65,000 visas for the general category and 20,000 for the advanced degree exemption.

USCIS will first randomly select petitions for the advanced degree exemption. All unselected advanced degree petitions will become part of the random selection process for the 65,000 general cap. The agency will reject and return filing fees for all unselected cap-subject petitions that are not duplicate filings.

Before running the lottery, USCIS will complete initial intake for all filings received during the filing period, which ended April 7. Due to the high number of petitions, USCIS is not yet able to announce the date it will conduct the random selection process.

USCIS will continue to accept and process petitions that are otherwise exempt from the cap. Petitions filed on behalf of current H-1B workers who have been counted previously against the cap, and who still retain their cap number, will also not be counted toward the congressionally mandated FY 2017 H-1B cap. USCIS will continue to accept and process petitions filed to:

  • Extend the amount of time a current H-1B worker may remain in the United States;
  • Change the terms of employment for current H-1B workers;
  • Allow current H-1B workers to change employers; and
  • Allow current H-1B workers to work concurrently in a second H-1B position.

U.S. businesses use the H-1B program to employ foreign workers in occupations that require highly specialized knowledge in fields such as science, engineering and computer programming.

We encourage H-1B applicants to subscribe to the H-1B Cap Season email updates located on the H-1B Fiscal Year (FY) 2017 Cap Season Web page.

For more information on USCIS and its programs, please visit uscis.gov or follow us on Facebook (/uscis), Twitter (@uscis), YouTube (/uscis) and the USCIS blog The Beacon.

Great News for Affected Firms: Public Law 111-230 H-1B, L-1 Additional Fees Expired October 1, 2015

According to USCIS, H-1B and L-1 petitions filed on or after Oct. 1, 2015, should not include the additional fee that was previously required by Section 402 of Public Law 111-230, as amended by Public Law 111-347, for certain H-1B and L-1 petitions. The additional fee required by Public Law 111-230, as amended, expired on Sept. 30, 2015.

All other H-1B and L-1 fees, including the Base fee, Fraud Prevention and Detection Fee, and American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) Fee when applicable, are still required. Petitions with incorrect fees may be rejected. Petitioners are reminded that USCIS prefers separate checks for each filing fee.

Public Law 111-230, enacted on Aug. 13, 2010, required an additional fee of $2,000 for certain H-1B petitions and $2,250 for certain L-1A and L-1B petitions postmarked on or after Aug. 14, 2010. Public Law 111-347, enacted on Jan. 2, 2011, extended the fees through Sept. 30, 2015.

Update: USCIS Final Guidance on When to File an Amended or New H-1B Petition after Matter of Simeio Solutions, LLC

Today USCIS issued its long awaited USCIS final guidance on how to implement the AAO precedent decision Matter of Simeio Solutions, LLC on when an amended or new H-1B petition must be filed.  By way of background, after years of allowing ‘LCA Amendments’ in H-1B cases involving solely a change in job sites, on April 9, 2015, the AAO’s sudden adoption of Matter of Simeio Solutions as precedent now requires a full H-1B amendment to be filed in most such cases: for many H-1B employers the AAO holding essentially mandates increased risk, complexity, cost, delay and uncertainty  Interestingly, it is probable that the need for a Matter of Simeio Solutions  came about, at least in part, to combat the widespread adoption of LCA amendments which became more popular after the USCIS issued the January 2010 Neufeld Memo, (about which I was interviewed by BBC Hindi), another suddenly imposed mandate that also increased risk, complexity, cost, delay and uncertainty for H-1B businesses (and from which USCIS somewhat backed away on later that same year).  In any case, after August 19, 2015 USCIS will require that a full H-1B amendment be filed together with a $325 fee.  Judging by recent H-1B regular processing times, USCIS may adjudicate these cases 3-6+ months after they are filed (faster if the Employer also pays USCIS a $1225 premium processing government fee).

USCIS guidance on Matter of Simeio Solutions provides an H-1B petitioner (employer) three different deadlines depending on when its employee changed location:

a) If, on or before April 9, 2015, a petitioner’s H-1B employee moved to a new place of employment (not covered by an existing, approved H-1B petition): an H-1B requirement may be filed, but is not required to be filed.USCIS indicates that in such cases, it “will generally not pursue new revocations or denials based upon failure to file an amended or new petition. However, notices of intent to revoke, revocations, requests for evidence, notices of intent to deny, or denials issued prior to July 21, 2015 (date of this final guidance) remain in effect and the petitioner must comply with them

b) If, after April 9, 2015 but prior to August 19, 2015, a petitioner’s H-1B employee moved to a new place of employment (not covered by an existing, approved H-1B petition): “The petitioner must file an amended or new petition by January 15, 2016. USCIS will consider filings prior to the deadline for this safe harbor period to be timely for purposes of the regulation. However, if the petitioner does not file the amended or new petition within the time permitted, the petitioner will be out of compliance with DHS regulations. The petitioner’s current Form I-129, Petition for a Nonimmigrant Worker, H-1B petition approval will be subject to a notice of intent to revoke and the employee may be found to not be maintaining his or her H-1B status.”

c) If, on or after August 19, 2015, a petitioner’s H-1B employee moved to a new place of employment (not covered by an existing, approved H-1B petition): “The petitioner must file an amended or new petition before an H-1B employee starts working at a new place of employment not covered by an existing, approved H-1B petition.”

While acknowledging favorably USCIS’ grant of additional time for compliance with Matter of Simeio Solutions, one of the primary issues faced by an H-1B employer presently is that while it may place its H-1B employee at a new job site and initiate work there at roughly the same time as in LCA amendment situations, in reality it may be immeasurably difficult to expect all affected parties to wait for a final USCIS adjudication (for which a longer wait than usual is likely based on the number of applications expected to be filed).  Second: such adjudications are often preceded by the issuance of and response to (usually) lengthy Requests for Evidence that frequently require both the employer and the employee to essentially ‘reinvent the wheel’, in other words, reestablish many elements of the case over again, including, amazingly, specialty occupation and beneficiary’s qualifications.  These adjudications can be expensive, time consuming and can ultimately result in denials of previously approved H-1B petitions, at an especially inopportune moment for the Employer/Employee (new assignment, new project etc).  This is both because unlike Matter of Simeio Solutions, the vast majority of AAO are non-precedent/ not binding on USCIS, and because USCIS is simply not required to grant discretion in extensions or amendments of H-1B employment involving the same employee and same employer,

“CIS has the authority to question prior determinations. Adjudicators are not bound to approve subsequent petitions or applications seeking immigration benefits where eligibility has not been demonstrated, merely because of a prior approval which may have been erroneous. Matter of Church Scientology International, 19 I&N Dec. 593, 597 (Comm. 1988). Each matter must be decided according to the evidence of record on a case-by-case basis. See 8 CFR § 103.8(d).”

Yates Memo of April 23, 2004 “The Significance of a Prior CIS Approval of a Nonimmigrant Petition in the Context of a Subsequent Determination Regarding Eligibility for Extension of Petition Validity.”

In short: minor location changes alone will now expose an H-1B employer to additional delay, expense and to the Totality of USCIS Scrutiny. Matter of Simeio Solutions and today’s policy guidance are certain to have a widespread impact on a variety U.S. business sectors, and like the January 2010 Neufeld Memo, both maintain the appearance of being engineered specifically to target the U.S.’ Information Technology Consulting sector, and by extension, Indian Nationals, who also received 70% of all H-1B petitions approved in FY2014.

There is a sharp dichotomy between our Nation’s Business and Family Immigration Policies: the former is lucky to receive an iota of the political attention and importance that the latter enjoys fairly consistently. By ratifying Matter of Simeio Solutions, USCIS has taken a firm step towards joining the Department of StateConsulates in steering the H-1B program down the same Road to Redundancy most recently traveled by the once-useful-but-no-longer-viable-for-US-business L-1B and ‘B-2 in Lieu of H-1B‘ programs (The F-1 OPT is next – and already targeted by anti-H-1B groups).  However, for U.S. businesses to grow, particularly those within STEM fields, our policymakers and stakeholders must acknowledge the critical import of Business Immigration programs such as the H-1B, and the significant contribution that H-1B professionals make towards our Nation’s future.  Aid must be provided in identifying and removing unreasonable obstacles from these programs in favor of sustainable solutions which must be effected through a lengthier rule-making process incorporating greater input from stakeholders to establish expeditious, cost-effective and workable solution(s) that to satisfy both USCIS and U.S. Business’ requirements.

It is abundantly clear that the U.S. maintains a critical and demonstrated need for H-1B professionals, and certainly for the continued viability of the H-1B program itself.  This fact is demonstrated most recently in April 2015 by the 233,000 H-1B applications filed by professionals for one of the approximately 85,000 spots in our (insufficient) yearly quota.  Our rejection of hundreds of thousands of professional workers over the years is untenable: it negatively impacts our ability to conduct business and attract the world’s Best and Brightest.  Further, while other nations eagerly recruit STEM workers (sometimes from within our own borders) each year we see more restrictions and obstacles ‘added-on’ to Business Immigration Programs, most particularly the H-1B.

Links:

USCIS POLICY GUIDANCE OF JULY 21, 2015 – Final Guidance on When to File an Amended or New H-1B Petition After Matter of Simeio Solutions, LLC

SIMEIO SOLUTIONS, LLC, 26 I&N Dec. 542 (AAO 2015) (PDF)

NEUFELD MEMO – January 2010 Neufeld Memo

H-1B Update: On May 4, 2015 USCIS Completed Data Entry of FY 2016 H-1B Cap-Subject Petitions and will begin Returning Rejected Cases

USCIS announced May 4, 2015, that it has completed data entry of all fiscal year 2016 H-1B cap-subject petitions selected in our computer-generated random process. USCIS will now begin returning all H-1B cap subject petitions that were not selected. Due to the high volume of filings, the time frame for returning these petitions is uncertain. USCIS asks petitioners to not inquire about the status of submitted cap-subject petitions until they receive a receipt notice or an unselected petition is returned. USCIS will issue an announcement once all the petitions have been returned.

Key Facts on President Obama’s Immigration Action – Via USCIS.gov

Via USCIS.gov

Fixing Our Broken Immigration System Through Executive Action – Key Facts

The President asked Secretary Johnson and Attorney General Eric Holder to undertake a rigorous and inclusive review to inform recommendations on reforming our broken immigration system through executive action. This review sought the advice and input from the men and women charged with implementing the policies, as well as the ideas of a broad range of stakeholders and Members of Congress from both sides of the aisle. Our assessment identified the following ten areas where we, within the confines of the law, could take action to increase border security, focus enforcement resources, and ensure accountability in our immigration system.

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Why President Obama and the Administration must Maintain Focus on Improving Business Immigration

A recent article by CNBC entitled “Investors to Obama: We need more foreign workers” explores the substantial problems faced by investors and entrepreneurs in securing sufficient numbers of foreign professional workers: the engine of innovation in the U.S.  Last year we met the H-1B cap the first week it was open, again: the only solution to the problems highlighted in the article is an increase in H-1B visas, else the demand for the same will relocate to a country like Canada, which intelligently recognizes the true value of such talent.

The CNBC article was forwarded to me by a highly capable entrepreneur/investor client of mine.  His situation warrants a short discussion, because it is supports the message in the article as well as the broader subject of our defective Business Immigration laws.  This client moved his family to the U.S., and recently invested almost $500,000 in a new U.S. based business which employs nine (9) U.S. workers.  Further, this client has purchased two Mercedes Benz vehicles and plans on buying a large house and, in the near term, investing another $1 to $5 million dollars in the U.S. – but only if USCIS approves an extension of his Business Immigration case. Unfortunately, USCIS seems a step away from denying his case, as our 1200+ page application on his behalf (which by the way weighed more than a newborn baby) was met with a ten (10) page Request for Additional Evidence (“RFE”).

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DOL Statistics on H-1Bs from FY2014 Fourth Quarter (8/31/14)

DOL Statistics on H-1Bs from FY2014 Fourth Quarter (8/31/14)

The U.S. Department of Labor’s OFLC statistics on H-1Bs as of 8/31/14, including number of LCAs received, top occupations, states, and employers, as well as the number of certified, denied, and withdrawn LCAs, number of positions requested and certified, and percentage of applications timely processed.

Interestingly, of the top ten (10) H-1B Occupations:

  • The top three (3) H-1B Occupations involve Information Technology.
  • A total of six (6) of the top 10 H-1B Occupations involve Information Technology.

Link: H-1B_Selected_Statistics_FY2014_Q4 (PDF)

Ashwin Sharma interviewed about H-1B visas in the September issue of the Florida Trend Magazine

3

via http://www.floridatrend.com

Florida Trend magazine’s article highlights many of the unreasonable constraints and scrutiny facing the H-1B professional worker program in the U.S. today.  Excerpt follows:

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USCIS Reaches FY 2015 H-1B Cap – Via USCS.gov

VIA USCIS.gov

Release Date: April 07, 2014

WASHINGTON—U.S. Citizenship and Immigration Services (USCIS) announced today that it has received a sufficient number of H-1B petitions to reach the statutory cap for fiscal year (FY) 2015. USCIS has also received more than the limit of 20,000 H-1B petitions filed under the U. S. advanced degree exemption.

Before running a random selection process, USCIS will complete initial intake for all filings received during the filing period which ended today. Due to the high number of petitions, USCIS is not yet able to announce the date on which it will conduct the random selection process.

A computer-generated process will randomly select the number of petitions needed to meet the caps of 65,000 visas for the general category and 20,000 under the advanced degree exemption. USCIS will reject and return filing fees for all cap-subject petitions that are not selected, unless found to be a duplicate filing.

The agency will conduct the selection process for the advanced degree exemption first. All advanced degree petitions not selected will become part of the random selection process for the 65,000 limit.

USCIS will continue to accept and process petitions that are otherwise exempt from the cap. Petitions filed on behalf of current H-1B workers who have been counted previously against the cap will not be counted towards the congressionally mandated FY 2015 H-1B cap. USCIS will continue to accept and process petitions filed to:

  • Extend the amount of time a current H-1B worker may remain in the United States;
  • Change the terms of employment for current H-1B workers;
  • Allow current H-1B workers to change employers; and
  • Allow current H-1B workers to work concurrently in a second H-1B position.
  • U.S. businesses use the H-1B program to employ foreign workers in occupations that require highly specialized knowledge in fields such as science, engineering and computer programming.

For more information on USCIS and its programs, please visit http://www.uscis.gov or follow us on Facebook (/uscis), Twitter (@uscis), YouTube (/uscis) and the USCIS blog The Beacon.

Last Reviewed/Updated: 04/07/2014

H-1B APPS FOR FY2015 UPDATE: SOME COURIER DELIVERY ISSUES REPORTED BY FEDEX

Update (6:45 PM): AILA Liaison has been informed that due to the reported courier delivery problems with FY2015 H-1B petitions, USCIS will accept a second H-1B petition in certain limited circumstances. Specifically, for cap-subject petitions that were timely filed, if, upon inquiry, the carrier indicates that there may be a delivery delay or the package has been damaged, the petitioner may file a second H-1B petition with:

  • A new fee;
  • An explanation as to why the second petition is being filed, with supporting evidence (such as the notice from the carrier); and
  • A request to withdraw the first H-1B cap petition.

USCIS will return the withdrawn petitions with the fee, even if they have already been receipted.

Petitions that do not include the above-referenced items will be treated as duplicate petitions and will be denied or revoked, and USCIS will not refund the filing fees. Please also note that if the FY2015 cap is met within the first five business days of April, USCIS will reject all petitions received after April 7, 2014, including duplicate H-1B petitions filed in accordance with these instructions.

 


 

Update (5:03 PM): A member has been informed by FedEx that approximately 200 packages have been delivered to the Vermont Service Center but were not scanned as delivered. Members can call FedEx directly (1-800-463-3339), provide the tracking number, and the representative should be able to confirm delivery telephonically.

 


 

AILA has received several reports from members who, upon inquiring about the status of their FedEx delivery, have been informed of delivery problems. AILA has reported the specific problems to USCIS headquarters. USCIS officials are investigating the situation and will report back to AILA as soon as possible. In the meantime, if you have been unable to confirm that your package has been delivered to the CSC or VSC, you might consider preparing a duplicate petition as a precaution. However, do not file a duplicate petition until you have confirmed that the original petition has been destroyed, misdirected, or lost. Under 8 CFR 214.2(h)(2)(i)(G), USCIS will deny or revoke duplicate filings by the same employer for the same beneficiary, and fees will not be refunded.

AILA will continue to provide updates as it learns more information from USCIS.

H-1B Opponents continue onslaught against Immigration of the Educated

This week, Bill Snyder, a blogger for the anti-H-1B propaganda site Infoworld posted an article attacking Immigration of the Educated.  What is especially interesting about Mr. Snyder’s position is the fact that it signals the resumption of the 2008 attack on the Optional Practical Training program (OPT).  OPT being a temporary work authorized status granted to eligible F-1 students who may thus gain professional work experience post graduation, and perhaps a portion back of 20+ billion dollars in tuition they pay into our coffers each year.

Unjustified ire towards OPT is peaking only because the program may be utilized by eligible F-1 Science/Technology/Engineering/Math (STEM) graduates.  Apparently, for Mr. Snyder, it is only then that the program transforms into what he terms “a sleazy end run around the law”.  Mr. Snyder claims that these new STEM graduates, supported by their “tech company” employers, enter the U.S. workforce en masse to undercut IT wages.  Said wages, which he admits in the first sentence, are already “climbing to more than $87,000 a year”.

The fact that Mr. Snyder’s argument against OPT flies in the face of the concept of American Exceptionalism and two basic economic principles, or that it is entirely bereft of any unbiased and relevant data is moot.  The most significant takeaway from his article is that STEM OPT is nothing more than a scapegoat: this attack is actually and truly directed against the H-1B program itself.  Mr. Snyder and other IT protectionists seek justification to undermine the OPT program not because of any alleged misuse, but because OPT allows a post graduate STEM worker precious time to find a good employer who may agree to pay government fees of up to $5,550.00 (plus attorney fees) to file an H-1B petition on their behalf.  (There are no guarantees of approval, nor is the worker forced to even ultimately take up employment with the H-1B petitioner.  As well, in the future, the H-1B worker, for any reason, may transfer to a new H-1B employer in as little as one week.)

Our immigration policy is increasingly hobbled by protectionists who, for short term gain (or perhaps unknowingly), damage our nation’s international lead in the STEM fields.  Our insufficient H-1B cap that does the same: tens of thousands of highly qualified, valuable STEM professionals were rejected in last year’s random selection process (H-1B lottery), and sadly the scene is set be repeated again this year in April.

Our repeated rejection of STEM professionals is untenable and is certain to diminish our ability to attract the worlds best and brightest, unless we make drastic changes.  Already, other nations are eagerly recruiting STEM workers (sometimes from within our own borders).  The bottom line: the yearly H-1B cap must be increased to an amount commensurate to demand, or at the very least, to a level that isn’t exhausted in one week.

Read Bill Snyder’s Article

Data Reveals USCIS Increasing Number of Requests for Evidence on L-1B Cases, California Service Center Continues to Lead Vermont Service Center in RFEs and Case Denials

FOIA_L-1B_RESULTS

Responding to a Freedom of Information request submitted by The American Immigration Lawyers Association Liaison, USCIS revealed interesting data on L-1B nonimmigrant petitions receipted, approved, denied, and those subjected to a Request for Evidence (“RFE”) for FY2012 and FY2013.  The data, when compared with USCIS statistics and a National Foundation for American Policy report, both released in 2012, reveals that the L-1B denial rate increased from 27% in FY2011 to 30% in FY2012 and 34% in FY2013.

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