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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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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On March 31, 2017 USCIS issued a policy memorandum that superseded and rescinded a 12/22/00 memorandum with guidance on H-1B computer related positions issued by the NSC.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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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:

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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.”

What to Do If a Legal Permanent Resident (Green Card Holder) is Asked to Relinquish his/her Green Card and Sign a Form I-407, Abandonment of LPR Status by Customs and Border Protection (CBP)

In a word: Don’t.

Upon returning to the U.S., Legal Permanent Residents (LPR) should not automatically surrender their green cards if asked to do so. An individual does not lose LPR status as a result of time abroad. They remain an LPR until a final order of removal is issued and the government must prove abandonment by clear, unequivocal, and convincing evidence which a higher evidentiary standard than clear and convincing. See Matter of Huang, 19 I&N Dec. 749 (BIA 1988). Form I-407 must be signed voluntarily and there are no potential negative ramifications for refusing to sign. Neither failure to sign nor abandonment is grounds for detention. Rather, an LPR who refuses to sign Form I-407 must be issued a Notice to Appear (NTA) so that an immigration judge can determine whether they have lost their LPR status.

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F-1 OPT I-765 RFE Issue: How a DSO can change students’ 17 month OPT extensions to 24 months

The Department of Homeland Security’s website notes that subsequent to USCIS changes to STEM optional practical training (OPT) regulations, the Student and Exchange Visitor Information System (SEVIS) Release 6.26 was deployed which, while not providing a fix addressing all of USCIS’ changes, will help solve some issues presented by the new regulations, including document generation for F-1 OPT students who have applied for an EAD/I-765 so they may respond to USCIS’ requests for evidence.  The update also:

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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.

Sudden EB-2 Priority Date Retrogression:  Did Donald Trump just get installed as Director of U.S. Citizenship and Immigration Services?

Many Employment Based 2nd Preference (EB-2) Indian applicants were expecting to file their Adjustment of Status (Green Card) applications in five (5) short days.  These applicants include Doctors, Veterinarians, Scientists, Information Systems Managers, Senior Software Developers, Lawyers and many other advanced degree professionals, all readying their application in October of 2015 based on next month’s visa bulletin (issued September 9th 2015) which declared that EB-2 India dates were current as of July 2011.  While the actual issuance of a green card would still have taken several more years, these applicants would have attained significant benefits while continuing their patient multi-year wait in line.  This news was greatly welcomed by EB applicants who felt that this was our Administration’s first real “immigration reform” initiative intended specifically to benefit America’s highly educated immigrants.

However USCIS has taken an about-turn on this point by announcing, in a highly confusing manner, the retrogression of those July 2011 dates, back to July 2009.  By way of background, a second visa bulletin announcement in one month is highly unusual, as is for the second announcement to be issued on a Friday, on the 25th of a month, at 4 pm, less than a week from the date the immigrant filings were set to begin.  As a direct result, thousands advanced degree professionals, mostly born in India, who have been waiting to file their green cards for 4+ years, will have to keep waiting.  This despite the applicants’ reasonable reliance on the Department of State’s Visa Bulletin of September 9th, or the thousands of dollars they each have likely spent in preparing their green card application(s) based on the same.

In this case, USCIS broke a promise to advanced degree immigrants who comprise a large percentage of our best and brightest.  USCIS’ actions in this regard are simply unintelligible and amount to exactly what Mahatma Gandhi spoke of when he noted that “a breach of promise is a base surrender of truth“.  USCIS’ action also moves us backward to the quota systems which the current immigration law, the Immigration and Nationality Act of 1965, was created to counter.

This is a highly suspect and unwelcome development which brings to mind July 2007, when USCIS attempted something similar.  At that time, a lawsuit stopped USCIS from closing the filing window and in fact kept said window remained open for about two months (longer than if USCIS didn’t attempt to shut down filings).

I’m hopeful that history will repeat itself.

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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

USCIS Announces Immigration Relief Measures for Nepali Nationals

Immigration Relief Measures for Nepali Nationals

USCIS has several immigration relief measures that may be available to Nepali nationals who are affected by the magnitude 7.8 earthquake that struck Nepal on April 25, 2015.

Measures that may be available to eligible Nepali nationals upon request include:

  • Change or extension of nonimmigrant status for an individual currently in the United States, even if the request is filed after the authorized period of admission has expired;
  • A grant of re-parole;
  • Expedited processing of advance parole requests;
  • Expedited adjudication and approval, where possible, of requests for off-campus employment authorization for F-1 students experiencing severe economic hardship;
  • Expedited adjudication of employment authorization applications, where appropriate;
  • Consideration for waivers of fees associated with USCIS benefit applications, based on an inability to pay; and
  • Assistance replacing lost or damaged immigration or travel documents issued by USCIS, such as Permanent Resident Cards (green cards).

To learn how to request relief or more about how USCIS assists customers affected by unforeseen circumstances in their home country, visit uscis.gov/humanitarian/special-situations or call the National Customer Service Center at 1-800-375-5283 (TDD for the hearing impaired: 1-800-767-1833).

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.