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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”.

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.

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)

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.

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.

USCIS Resumes H-1B Premium Processing for Certain Cap-Exempt Petitions

Via USCIS.gov

USCIS indicates that it will resume premium processing for certain cap-exempt H-1B petitions effective immediately.

Premium processing will resume for petitions that may be exempt from the cap if the H-1B petitioner is:

* An institution of higher education;

* A nonprofit related to or affiliated with an institution of higher education; or

* A nonprofit research or governmental research organization.

Premium processing will also resume for petitions that may also be exempt if the beneficiary will be employed at a qualifying cap-exempt institution, organization or entity. 

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.

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.

Read More…

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:
Read More…

USCIS Fact Sheet: Automatic Extensions of EADs Provided by Final Rule

USCIS has issued a fact sheet on the automatic extensions of EADs provided by the “Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers” final rule, which went into effect on January 17, 2017.  The fact sheet provides additional information to employers and EAD applicants including information regarding I-9 completion.

Link to PDF

 

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:

Read More…

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.”