Tag Archive | DHS

DHS Appears to Be Contemplating a Major Change to 6+ Year H-1B Extensions under AC21: Up to 1 Million H-1B Holders Could Be Affected

The Department of Homeland Security (DHS) appears to be contemplating a major change to 6+ year H-1B Extensions, an act that would have major implications in the lives of the approximately 1 Million H-1B holders in the U.S. who are waiting for a green card.  To effect such a change, all DHS would need to do is continue its policy of reinterpreting any language and/or guidance it considers imprecise in a way that negatively affects the H-1B visa program.  And in this case it apparently seeks to reinterpret the words  “may grant” in AC21 Section 104(c), a provision that allows for up to three (3) year H-1B Extensions for certain I-140 holders (mainly Indian nationals, coincidentally).  Such a reinterpretation would allow DHS to effectively neuter H-1B extensions under AC21 Section 104(c), however, because DHS does not currently appear to be able to reinterpret the word “shall” in AC21 Section 106(a), one (1) year H-1B Extensions should remain untouched and available.

A reinterpretation of AC21 Section 104(c) by DHS, if undertaken, would align harmoniously amongst its other recent attempts to make H-1Bs prohibitively complicated, expensive and more frequently subject to DHS’ scrutiny (i.e. the trending query of the month).  That stated, please note that the American Immigration Lawyers Association (AILA.org) has indicated that DHS has not issued a formal announcement about any such change, that such a change would require a formal rulemaking procedure, and lastly, that such changes could be subject to litigation.

Ultimately, instead of scapegoating Srinivas from Hyderabad for daring to fill one of the 480,000 open computing jobs nationwide, we should be asking ourselves why Suzy from Ohio is majoring in Italian Art History instead of Computer Engineering.  There is a very real and obvious problem with education in our country, but it is not the H-1B Program or H-1B workers, rather, the issue is that We. Are. Not. Producing. Enough. STEM. Workers.  

BELOW VIA AILA.ORG

Under current law, the American Competitiveness in the Twenty-First Century Act (AC21) has two provisions, section 104(c) and section 106(a), which enable DHS to grant an H-1B extension to an H-1B worker who has reached the six-year limit if certain milestones in the LPR process have been met. These two provisions are summarized below:

H-1B EXTENSION BEYOND SIX-YEAR LIMITATION UNDER AC21
AC21 Provision Section 104(c) Section 106(a)
Requirements for an H-1B Extension beyond the Sixth-Year Enables a three-year H-1B extension beyond the six-year maximum period if an H-1B worker:

(i) has an approved employment-based immigrant visa petition (I-140 petition) under the EB-1, EB-2, or EB-3 visa category, and

(ii) is eligible to be granted lawful permanent resident status but for per country limits on visa availability.

Enables a one-year H-1B extension beyond the six-year maximum period if:

(i) 365 days or more have passed since the filing of a labor certification application on the H-1B worker’s behalf, or

(ii) 365 days or more have passed since the filing of an I-140 petition.

Relevant Statutory Language Section 104(c) provides that the DHS Secretary (formerly the Attorney General) “may grant” such an extension to an eligible H-1B worker who meets the requirements of this section until the adjustment of status application has been adjudicated. Section 106(a) provides that the maximum six-year limit “shall not apply” to an H-1B worker who meets the requirements of this section and that the DHS Secretary “shall extend” the stay in one-year increments until such time as a final decision is made on the H-1B worker’s adjustment of status application.

DHS is reportedly looking at whether it can stop approving H-1B extensions for H-1B workers who meet the requirements of section 104(c), by reinterpreting the “may grant” language as discretionary, and therefore that DHS may, but is not required to, approve such H-1B extensions.

 
Notably, as outlined above, section 106(a) of AC21 provides that the maximum six-year period of H-1B status “shall not apply” to H-1B workers who qualify for an H-1B extension under section 106(a) and that the DHS Secretary “shall extend” the stay of H-1B workers who meet the requirements in one-year increments until such time as a final decision is made on the H-1B worker’s adjustment of status application. This provision, with its use of the word “shall,” should be read as mandatory, and thus DHS would be required to approve the extension for those H-1B workers who met the requirements of section 106(a). As such, H-1B workers who could potentially be impacted by the reported proposed changes to AC21 section 104(c) should be able to continue to extend their H-1B status under section 106(a) of AC21, provided they have met the required milestones in the LPR process. This is even true for H-1B workers who initially did not meet the requirements of section 106(a) but who now, through the passage of time, qualify for the one-year extension.”

AFP Article: “Florida’s foreigners living in fear in the era of Trump”

Via AILA.org

This AFP article, which quotes several American Immigration Lawyers members, reports that undocumented individuals in Florida are living in a state of fear and confusion under the Trump administration. Those fears got even worse when Miami Mayor Carlos Gimenez decided on January 26, 2017, to bow to a defunding threat from President Trump and removed Miami from the list of so-called “sanctuary cities.” According to the Migration Policy Institute, Florida is home to 650,000 immigrants who do not have legal residency status, and a study by the Pew Research Institute found that Miami had the fifth largest undocumented immigrant population in the United States, at 450,000 people.

Statement From Secretary Kelly On Recent ICE Enforcement Actions Via DHS.gov

Via DHS.gov

Release Date:
February 13, 2017

For Immediate Release
Office of the Press Secretary
Contact: 202-282-8010

WASHINGTON – Last week, U.S. Immigration and Customs Enforcement (ICE) launched a series of targeted enforcement operations across the country. These operations targeted public safety threats, such as convicted criminal aliens and gang members, as well as individuals who have violated our nation’s immigration laws, including those who illegally re-entered the country after being removed and immigration fugitives ordered removed by federal immigration judges.

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DHS OIG: Inspector General Announces Review of Implementation of the President’s Executive Order

The Department of Homeland Security Office of Inspector General (“DHS OIG”) announced late Wednesday that it will review DHS’ implementation of “Protecting the Nation from Terrorist Entry into the United Stated by Foreign Nations” and adherence to court orders and allegations of individual misconduct, initiated due to congressional request and whistleblower and hotline complaints.

Link to PDF

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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.”

USCIS Publishes Final Rule For Certain Employment-Based Immigrant and Nonimmigrant Visa Programs

Via USCIS.gov

USCIS has published a final rule to modernize and improve several aspects of certain employment-based nonimmigrant and immigrant visa programs. USCIS has also amended regulations to better enable U.S. employers to hire and retain certain foreign workers who are beneficiaries of approved employment-based immigrant visa petitions and are waiting to become lawful permanent residents. This rule goes into effect on Jan. 17, 2017.

Among other things, DHS is amending its regulations to:

  • Clarify and improve longstanding DHS policies and practices implementing sections of the American Competitiveness in the Twenty-First Century Act and the American Competitiveness and Workforce Improvement Act related to certain foreign workers, which will enhance USCIS’ consistency in adjudication.
  • Better enable U.S. employers to employ and retain high-skilled workers who are beneficiaries of approved employment-based immigrant visa petitions (Form I-140 petitions) while also providing stability and job flexibility to these workers. The rule increases the ability of these workers to further their careers by accepting promotions, changing positions with current employers, changing employers and pursuing other employment opportunities.
  • Improve job portability for certain beneficiaries of approved Form I-140 petitions by maintaining a petition’s validity under certain circumstances despite an employer’s withdrawal of the approved petition or the termination of the employer’s business.
  • Clarify and expand when individuals may keep their priority date when applying for adjustment of status to lawful permanent residence.
  • Allow certain high-skilled individuals in the United States with E-3, H-1B, H-1B1, L-1 or O-1 nonimmigrant status, including any applicable grace period, to apply for employment authorization for a limited period if:
  1. They are the principal beneficiaries of an approved Form I-140 petition,
  2. An immigrant visa is not authorized for issuance for their priority date, and
  3. They can demonstrate compelling circumstances exist that justify DHS issuing an employment authorization document in its discretion.

Such employment authorization may only be renewed in limited circumstances and only in one year increments.

  • Clarify various policies and procedures related to the adjudication of H-1B petitions, including, among other things, providing H-1B status beyond the six year authorized period of admission, determining cap exemptions and counting workers under the H-1B cap, H-1B portability, licensure requirements and protections for whistleblowers.
  • Establish two grace periods of up to 10 days for individuals in the E-1, E-2, E-3, L-1, and TN nonimmigrant classifications to provide a reasonable amount of time for these individuals to prepare to begin employment in the country and to depart the United States or take other actions to extend, change, or otherwise maintain lawful status.
  • Establish a grace period of up to 60 consecutive days during each authorized validity period for certain high-skilled nonimmigrant workers when their employment ends before the end of their authorized validity period, so they may more readily pursue new employment and an extension of their nonimmigrant status.
  • Automatically extend the employment authorization and validity of Employment Authorization Documents (EADs or Form I-766s) for certain individuals who apply on time to renew their EADs.
  • Eliminate the regulatory provision that requires USCIS to adjudicate the Form I-765, Application for Employment Authorization, within 90 days of filing and that authorizes interim EADs in cases where such adjudications are not conducted within the 90-day timeframe.

USCIS now considers Same-Sex Marriages valid: Green Card Applications OK

VIA DHS.GOV

Implementation of the Supreme Court Ruling on the Defense of Marriage Act

Statement from Secretary of Homeland Security Janet Napolitano:

English: Official portrait of United States Se...

English: Official portrait of United States Secretary of Homeland Security Janet Napolitano Español: Retrato oficial de Secretaria de Seguridad Interna de los Estados Unidos Janet Napolitano (Photo credit: Wikipedia)

“After last week’s decision by the Supreme Court holding that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional, President Obama directed federal departments to ensure the decision and its implication for federal benefits for same-sex legally married couples are implemented swiftly and smoothly. To that end, effective immediately, I have directed U.S. Citizenship and Immigration Services (USCIS) to review immigration visa petitions filed on behalf of a same-sex spouse in the same manner as those filed on behalf of an opposite-sex spouse.”

Frequently Asked Questions

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IMMIGRATION ATTORNEY APPLAUDS NEWLY ANNOUNCED DHS REFORMS IN FURTHERANCE OF ATTRACTING AND RETAINING HIGHLY SKILLED IMMIGRANTS/INVESTORS AND CALLS FOR PARALLEL CHANGES IN THE U.S. CONSULAR PROCESSING SYSTEM

The Department of Homeland Security (DHS) has announced substantial changes to our immigration system by way of a two prong strategy aimed at retaining highly skilled immigrants and increasing investment in the U.S. by foreign investors, reports U.S. Immigration lawyer Ashwin Sharma. The DHS announced this week that it would add to or modify established immigration processes so as to further President Obama’s commitments to:

1.  The Creation of a “Startup Visa,”

2. Strengthening the H-1B nonimmigrant professional program,

and

3. “Stapling” green cards to the diplomas of certain foreign-born graduates in science, technology, engineering, and math (STEM) fields, and make improvements to existing programs.

The DHS hopes that these and other proposed changes will attract and retain highly-skilled immigrants.

Ashwin Sharma, a member of the American Immigration Lawyers Association, applauds the DHS’s actions and calls for parallel changes within the U.S. Department of State’s Consular Posts. “We urgently require these changes and more, particularly with regard to professionals and investors.  It has never been more difficult for tourists, professionals or investors to legally enter this country and contribute to the American economy.  Our various immigration departments and agencies are interpreting the same laws differently.  The U.S. Consulates, for example, appear to be ignoring specific Congressional mandates.  Furthermore, there appears to be little communication between DHS and the Consulates which results in the inexplicable penalization of valuable immigrants.”

Mr. Sharma continued, “For example, to fill a specialty occupation with an H-1B professional worker, a U.S. employer may pay up to $5,500 just in government filing fees, provide hundreds or thousands of pages to DHS in support, make applicable attestations, answer up to one or two DHS queries and remain ready for a random on-site inspection.  However, even after obtaining an approval subsequent to this rigorous and expensive adjudication process, which will have to be repeated each time an employer files a case, an employer may learn that their H-1B employee(s) are barred from reentering the U.S. after a short visit abroad.  These employee(s) may be held abroad for months or years, away from their family, home and of course, job.  U.S. employers of those encountering such a situation often lose contracts, profits and incur harm to their corporate reputation.”

A U.S. Consular officer may deny entry to the U.S. to anyone, even someone with a DHS approved H-1B.  Such a denial follows, generally, a two to five minute interview in which a Consular officer quickly flips through the same documentation previously scrutinized by the DHS.  Presently, the main reason for such denials for H-1B IT workers appears predicated on Consular Officers’ outdated interpretation of what constitutes an “employee-employer” relationship within the H-1B context.  This definition however, has been substantially modified by DHS and DHS Chief Napolitano since the original, restrictive definition was announced in January of 2010.  Unfortunately, no one seems to have issued the revisions to the Consulates.  Further, it appears that a substantial percentage of such H-1B visa denials may be improper.  This is because the Foreign Affairs Manual (“FAM”) guidelines for Consulates state that a U.S. Consular Officer may only deny a case on very specific grounds, that is, the discovery of new negative facts not previously known to DHS in the course of DHS’ adjudication.  For example, 9 FAM 41.53(d) states that,”

“…The consular officer must suspend action on this alien’s application and submit a report to the approving DHS office if the consular officer knows or has reason to believe that an alien applying for a visa under INA 101(a)(15)(H) is not entitled to the classification as approved.”

Mr. Sharma highlighted a selection in the FAM which indicates a Consular officer,

 “…must have specific evidence of a requirement for automatic revocation, misrepresentation in the petition  process, lack of qualification on the part of the beneficiary, or of other previously unknown facts, which might alter USCIS’s finding before requesting review of an approved Form I-129, Petition for a Nonimmigrant Worker.”

Mr. Sharma noted that, “The FAM repeatedly emphasizes that DHS, the original adjudicator of the petition, should be given greater deference than Consulates in reviewing the qualifications of a particular alien for “H” status, and that Consulates should rely on DHS expertise, and not their own.  This is not only so because Congress explicitly and implicitly assigned “responsibility” and “authority” of making such a decision to DHS but also because of the complexity of H petitions in general.”

“By mandating a preliminary petition process, Congress placed responsibility and authority with Department of Homeland Security (DHS) to determine whether the alien meets the required qualifications for “H” status.  Because DHS regulations governing adjudication of H petitions are complex, you should rely on the expertise of DHS in this area.” 9 FAM 41.53 N2.1 Department of Homeland Security (DHS) Responsible for Adjudicating H Petitions”

Mr. Sharma stated, “Another unambiguous demand for Consulates’ deference to DHS is contained in 9 FAM 41.53 N2.2, under the heading entitled, “Approved Petition Is Prima Facie Evidence of Entitlement to H Classification”.  Subsection (a) of this section makes it abundantly clear that the Consulate or Consular officer should not make any adverse decision on an H-1B petition approved by DHS, unless the Consulate discovers (presumably material) information during the visa interview that was not available to DHS,”

“You do not have the authority to question the approval of H petitions without specific evidence, unavailable to DHS at the time of petition approval, that the beneficiary may not be entitled to status.  The large majority of approved H petitions are valid, and involve bona fide establishments, relationships, and individual qualifications that conform to the DHS regulations in effect at the time the H petition was filed.”

Mr. Sharma emphasized that it is “only if the Consulate discovers material not known to the DHS is it advised to issue a request for evidence in the following note (b),”

“If information develops during the visa interview (e.g., evidence which was not available to DHS) that gives you reason to believe that the beneficiary may not be entitled to status, you may request any additional evidence which bears a reasonable relationship to this issue. “  

Mr. Sharma provided another example in 9 FAM 41.53 N2.3, “Referring Approved H Petition to Department of Homeland Security (DHS) for Reconsideration” which he stated “…reemphasizes an often ignored directive: that Consular officers,”

“… should consider all approved H petitions in light of these Notes, process those applications that appear to be legitimate, identify those applications which require local investigation, and identify those petitions that require referral to the approving U.S. Citizenship and Immigration Services (USCIS) office for reconsideration.  Refer petitions to USCIS for reconsideration sparingly, to avoid inconveniencing bona fide petitioners and beneficiaries and causing duplication of effort by USCIS.  You must have specific evidence of a requirement for automatic revocation, misrepresentation in the petition process, lack of qualification on the part of the beneficiary, or of other previously unknown facts, which might alter USCIS’s finding before requesting review of an approved Form I-129, Petition for a Nonimmigrant Worker.”

Mr. Sharma concluded, “It is highly improbable that freshly discovered documentary evidence, both material in nature and unavailable to DHS at the time of original adjudication, could be discovered during the course of a typically rapid Consulate interview for the majority of H-1B petitions that have been denied recently.  Visa applicants and their employers obey the law, ‘wait their turn’ and pay the requisite fees but are often those most ill treated by our system.  These individuals are suffering harm because of the carelessness, ignorance and a lack of communication within and among our Immigration agencies, particularly at the Consular level.  This may be one of the major reasons why our economy suffers; tourists, students, investors and professionals are increasingly selecting emigration to Australia and Canada over the U.S. and its unpredictable, almost schizophrenic immigration system.  I welcome the DHS’ proposed changes but they will have little impact if the U.S. Department of State’s Consulates continue to ignore them.”