(Via AILA.org) Major Settlement Changes How USCIS Adjudicates Work Permits for [H-4 and L-2 ] Nonimmigrant Spouses
AILA and its litigation partners entered into a settlement agreement with DHS that provides structural changes for H-4 and L-2 spouses suffering from long delayed processing times for the processing of applications for employment authorization. (Shergill, et al. v. Mayorkas, 11/10/21)
Within 120 days of the Effective Date, USCIS will amend the receipt notice currently issued to applicants to detail the EAD auto-extension eligibility for those holding H-4 status based on the validity period provided on a Form I-94 in combination with a facially expired EAD and the Form I-797C receipt notice for a timely-filed I-765 EAD renewal application.
USCIS will issue policy guidance that states that L-2 spouses are employment authorized incident to status and, in cooperation with CBP, change the Form I-94, within 120 days of the Effective Date, to indicate that the bearer is an L-2 spouse so that it can be used as a List C document for Form I-9 purposes.
FOR IMMEDIATE RELEASE
Wednesday, November 10, 2021
Washington, DC – The American Immigration Lawyers Association (AILA) and its litigation partners Wasden Banias and Steven Brown, celebrate the historic settlement with the Department of Homeland Security (DHS) in Shergill, et al. v. Mayorkas, which provides structural changes for nonimmigrant H-4 and L-2 spouses suffering from long delayed processing times for the processing of applications for employment authorization. The litigation successfully achieved the reversal of U.S. Citizenship and Immigration Services (USCIS) policy that prohibited H-4 spouses from benefiting from automatic extension of their employment authorization during the pendency of standalone employment authorization document (EAD) applications. Although this is a giant achievement, the parties’ agreement will further result in a massive change in position for USCIS, which now recognizes that L-2 spouses enjoy automatic work authorization incident to status, meaning these spouses of executive and managers will no longer have to apply for employment authorization prior to working in the United States.
Jesse Bless, AILA Director of Federal Litigation stated, “Today marks a historic change for L-2 spouses who will now enjoy work authorization incident to status. AILA’s membership has long advocated for the correct statutory interpretation and we’re delighted to have reached this agreement, which includes relief for H-4 spouses, through our litigation efforts with Wasden Banias and Steven Brown. It is gratifying that the administration saw that settling the litigation for nonimmigrant spouses was something that should be done, and done quickly.”
Jon Wasden stated, “After years of outreach to the agency, it became clear that litigation was unfortunately necessary. Despite the plain statutory language, USCIS failed to grant employment authorization incident to status for L-2s. The other issue relates to H-4s whose work permits expire prior to their H-4 status; this is a group that always met the regulatory test for automatic extension of EADs, but the agency previously prohibited them from that benefit and forced them to wait for reauthorization. People were suffering. They were losing their high-paying jobs for absolutely no legitimate reason causing harm to them and U.S. businesses. So, while I’m glad the agency finally followed the law, it is frankly frustrating that an easily fixable issue took this long to address.”
See this op-ed from Forbes for more information
Read the Decision: Shergill, et al. v. Mayorkas, 11/10/21 [PDF]
A group of 174 Indian nationals, including seven minor children, filed a lawsuit in the U.S. District Court for the District of Columbia challenging Presidential Proclamation 10052, which took effect on June 24, 2020, and temporarily suspends entry of certain H, J, and L nonimmigrants into the United States. The plaintiffs seek an order declaring Proclamation 10052 to be unlawful, compelling DHS to issue decisions on their pending requests for H-1B and H-4 visas, and enjoining DHS from refusing entry into the United States based on the proclamation, among other relief.
(Panda, et al. v. Wolf, et al., 7/14/20)
Ashwin Sharma quoted by the Times of India on USCIS’s latest Policy Memo, a Major Victory for H-1B Consulting Firms/Employees
I was quoted today in a Times of India article on USCIS’s issuance of a game-changing new policy memorandum yesterday in which it rescinds and replaces two previous policy memoranda (2010, 2018) regarding the adjudication of H-1B petitions for professionals assigned to third-party job sites.
Among its other directives, the memo instructs USCIS officers to stop requiring H-1B employers to provide job itineraries for H-1B candidates as well as private contractual documentation between third-party client/vendor companies. The memo advises USCIS officers to refrain from issuing ridiculously short approval durations in these cases (as little as 1-2 months). The memo also makes it easier for an H-1B employer to demonstrate an eligible Employer-Employee relationship with its H-1B employee.
In summary: though USCIS still maintains arrows in its quiver to target the H-1B program, the new guidance represents extremely positive news for H-1B stakeholders, particularly those within the consulting industry. The policy guidance is effective immediately, and applies to any pending or new requests for H-1B classification, including motions on and appeals of revocations and denials of H-1B classification.
“Sharma also said H-1B employees face another challenge. The inability of an employee to continue working and retaining insurance benefits because of USCIS’s historic delays in adjudicating extensions (again, for the H-1B in particular, the present unavailability of the premium processing option leaves H-1B employers and employees in a very difficult predicament). “The USCIS’s delay can severely impact an H-1B/EAD (employment authorisation document), employee’s ability to maintain their employment and associated insurance benefits by placing them in a gray area – they may be lawful to remain in the USA during this time, but they cannot work until USCIS approves their H-1B or EAD in these cases,” he said.”
Ashwin Sharma quoted in the Times of India re: the President’s Immigration Suspension and the possible future impact to Nonimmigrant visas such as the H-1B
“Ashwin Sharma, Jacksonville-based immigration attorney, told TOI, “At present the proclamation has left untouched the vulnerable visas in the non-immigrant categories. However, section 6 of the proclamation is deeply concerning as it leaves the door open to a future attack on the H-1B and other work visas.”
Sharma hopes that the President has no further plans to attack the H-1B and other non-immigrant visas under the guise of ‘protecting the American worker’. He wondered whether the proclamation is a subtle and first test of the waters. According to him, US will need its skills gap filled by H-1B and other professional workers in the long recovery from the ravages of Covid-19.”
Reminder: Effective today, March 20, 2020, USCIS will not accept any new requests for Premium Processing
U.S. Citizenship and Immigration Services today announced the immediate and temporary suspension of premium processing service for all Form I-129 and I-140 petitions until further notice due to Coronavirus Disease 2019 (COVID-19).
Effective today, March 20, 2020, USCIS will not accept any new requests for premium processing. USCIS will process any petition with a previously accepted Form I-907, Request for Premium Processing Service, in accordance with the premium processing service criteria. However, we will not be able to send notices using pre-paid envelopes. We will only send batch-printed notices. Petitioners who have already filed a Form I-129, Petition for a Nonimmigrant Worker, or Form I-140, Immigrant Petition for Alien Workers, using the premium processing service and who receive no agency action on their case within the 15-calendar-day period will receive a refund, consistent with 8 CFR 103.7(e). We will notify the public with a confirmed date for resuming premium processing.
USCIS will reject the I-907 and return the $1,440 filing fee for all petitions requesting premium processing that were mailed before March 20 but not yet accepted.
This temporary suspension includes petitions filed for the following categories:
- I-129: E-1, E-2, H-1B, H-2B, H-3, L-1A, L-1B, LZ, O-1, O-2, P-1, P-1S, P-2, P-2S, P-3, P-3S, Q-1, R-1, TN-1 and TN-2.
- I-140: EB-1, EB-2 and EB-3.
This includes new premium processing requests for all H-1B petitions, including H-1B cap-subject petitions for fiscal year 2021, petitions from previous fiscal years, and all H-1B petitions that are exempt from the cap. USCIS previously announced the temporary suspension of premium processing for FY 2021 cap-subject petitions and tentative dates for resumption of premium processing service. This announcement expands upon and supersedes the previous announcement.
Judge Rosemary M. Collyer of the US District Court for the District of Columbia ruled in the favor of ITServe Alliance, Inc. in its Administrative Procedure Act (APA) suit against USCIS. This is extremely positive news for H-1B Petitioners and Beneficiaries, and in line with the arguments that these stakeholders have been making before USCIS for some time.
The decision makes for some great reading as the Judge deftly fillets USCIS’s “strategic” attempts to ensure that its Policy Memos maintain sufficient legal standing to have the force of the law, but not sufficient to be legally challenged; the Judge also rejects USCIS’s interpretation on the issues of, “Employer-Employee Relationship” and “Specialty Occupation”, indicating that, “The CIS interpretations…are plainly erroneous“, and dismisses the Itinerary requirement quite simply because, “…is not in the statute.”
“The Court concludes that, as applied to these Plaintiffs in the IT consulting sector, it is irrational, that is, arbitrary and capricious, to impose the INS 1991 Regulation as does CIS, requiring contracts or other corroborated evidence of dates and locations of temporary work assignments for three future years; it is, in fact, a total contradiction of the Plaintiffs’ business model of providing temporary IT expertise to U.S. businesses. Nothing more clearly illustrates the legislative nature of the CIS interpretation of the Regulation because it would effectively destroy a long-standing business resource without congressional action.”
Next action: “The subset of cases that are assigned to Judge Rosemary M. Collyer will be remanded to CIS for reconsideration consistent with this Opinion and the Court will order that such reconsideration shall be completed in no more than 60 days.”
Additional Excerpt of the Decision Below:
“Approximately thirty-three cases have been filed in this District challenging the handling of H-1B visa applications by CIS, a constituent agency of the Department of Homeland Security (DHS). Although not “related” within the meaning of Local Civil Rule 40.5(a)(3), the cases have been consolidated before this Court with the agreement of the assigned Judges for briefing on three legal issues under Local Civil Rule 40.5(e):
1. the authority of CIS to grant visas for less than the requested three-year period;
2. the authority of CIS to deny visas to companies that place employees at third-party
locations either because the third party is determined to be the employer or because
specific and detailed job duties are not provided with the visa application; and
3. the related statute of limitations issues raised by the government.
See 3/6/2019 Minute Order Referring Case for Limited Purpose (Consolidation Order), ERP Analysts v. Cissna, No. 19-cv-300. Question 2 concerns the employer-employee relationship, the availability of work for a temporary foreign worker, and the foreign worker’s maintenance of status. Plaintiffs allege that CIS is applying new versions of these requirements, without engaging in rulemaking, to H-1B applicants that are IT consulting firms and not to other U.S. employers.
The Court finds, as discussed below, that:
1. The 1991 Regulation was adopted by INS through notice-and-comment rulemaking and the statute of limitations ran out long before this case was filed. It is subject only to an as-applied challenge.
2. CIS issued a 2010 Guidance Memorandum (CIS 2010 Guidance Memo), also referred to as the Neufeld Memo, from which comes a new employer-employee relationship set of requirements. It is timely challenged on an as-applied basis but not as a facial challenge.
3. CIS issued a 2018 Policy Memorandum, PM-602-0157 (CIS 2018 Policy Memo). It can be challenged either facially or as applied.
4. The current CIS interpretation of the employer-employee relationship requirement is inconsistent with its regulation, was announced and applied without rulemaking, and cannot be enforced.
5. The CIS requirements that employers (1) provide proof of non-speculative work assignments (2) for the duration of the visa period is not supported by the statute or regulation and is arbitrary and capricious as applied to Plaintiffs’ visa petitions. These requirements were also announced and applied without rulemaking and cannot be enforced.
6. CIS’s itinerary requirement was superseded by a later statute that permits employers to place H-1B visa holders in non-productive status and is, therefore, no longer enforceable.
7. CIS has the authority to grant visas for less than the requested three-year period but must provide its reasoning behind any denials, in whole or in part.”
Quoted by the Times of India on DC District Court’s Decision to overturn USCIS’s H-1B Specialty Occupation denial in RELX, Inc. v. Baran
I was quoted in a Times of India article on U.S. District Court for the District of Columbia’s decision to overturn USCIS’s denial (on Specialty Occupation grounds) in RELX, Inc. d/b/a/ LexisNexis USA, and Subhasree Chatterjee v. Baran et al. A recent blog entry I wrote on about case may be found here.
Relx, Inc. and Chatterjee v. Baran, 8/5/19 – DC District Court Judge Granted Summary Judgment to the Plaintiffs and Denied Government’s Motion to Dismiss in H-1B Denial
Recently, Judges at the U.S. District Court for the District of Columbia issued starkly contrasting decisions in two separate H-1B lawsuits. Both Sagarwala v. Cissna and RELX, Inc. d/b/a/ LexisNexis USA, and Subhasree Chatterjee v. Baran et al and arose from H-1B petitions that had been denied by the USCIS on “Specialty Occupation” grounds. Both also appear to have also been filed using the subcategories within the miscellaneous SOC Occupational Classification of 15-1199.00 – Computer Occupations, All Other — a somewhat troublesome classification to establish as a Specialty Occupation, primarily because the USCIS’s Undisputed Holy Book of Professional Occupations, the US Department of Labor’s Occupational Outlook Handbook (“OOH”), does not maintain a detailed description of this classification’s educational requirements.
Ashwin Sharma quoted in the Times of India’s Article on S.386 & the New Grassley Amendment, Implications on the Fairness For High Skilled Immigrants Act
“Over the last decade, various bills to remove this per country cap, have failed to become law. S. 386 has been rescued from the fate of its predecessors through appeasement, specifically, by agreeing to amendments that would allow further restrictions on merit-based non-immigrant visas, particularly with regards to the H-1B programme. However, it is interesting to note that many of these so-called ‘new’ restrictions already exist in one form or another,” Florida based immigration attorney, Ashwin Sharma, told TOI.
For instance, even currently, H-1B sponsoring employers have to certify + that they are not favouring immigrant workers over American workers. They have to indicate how they calculated the prevailing wages they are offering to H-1B workers (but these records are to be made available only on specific request of the concerned authorities), explained Sharma.”
USCIS Resumes Premium Processing for All H-1B Petitions – Could Earn Approx. $330,000,000 in PP Fees This Year
U.S. Citizenship and Immigration Services (USCIS) announced that it will resume premium processing for all H-1B petitions beginning today, Tuesday, March 12, 2019. This is welcome news for many petitioners and beneficiaries who have been subjected to significant delays in processing, and certainly, great news for USCIS itself. There is no doubt that Premium Processing fees, increased to $1,410.00 per petition last year, are an important source of revenue for USCIS, given that is “funded primarily by immigration and naturalization benefit fees charged to applicants and petitioners.”
Premium Processing fees are technically optional, but frequently paid to increase the speed of adjudication from several months to potentially as little as two (2) to four (4) weeks. This program was suspended and unavailable for many H-1B categories over the last 6-12 months during which time such professionals and their employers nervously witnessed (or were impacted by) adjudication delays of approximately 4-12+ months, as well as USCIS’s frequent internal changes to its adjudication criteria which allowed it to issue bizzare numbers of queries and denials of H-1B petitions in 2018.