DHS Announces Final Rule for a More Effective and Efficient H-1B Visa Program
Final Rule Effective Beginning April 1, 2019
WASHINGTON—The Department of Homeland Security (DHS) posted today for public inspection, a final rule amending regulations governing H-1B cap-subject petitions, including those that may be eligible for the advanced degree exemption. The final rule reverses the order by which U.S. Citizenship and Immigration Services (USCIS) selects H-1B petitions under the H-1B regular cap and the advanced degree exemption, and it introduces an electronic registration requirement for petitioners seeking to file H-1B cap-subject petitions. The rule will be published in the Federal Register on Jan. 31, and will go into effect on April 1, though the electronic registration requirement will be suspended for the fiscal year (FY) 2020 cap season.
“These simple and smart changes are a positive benefit for employers, the foreign workers they seek to employ, and the agency’s adjudicators, helping the H-1B visa program work better,” said USCIS Director L. Francis Cissna. “The new registration system, once implemented, will lower overall costs for employers and increase government efficiency. We are also furthering President Trump’s goal of improving our immigration system by making a simple adjustment to the H-1B cap selection process. As a result, U.S. employers seeking to employ foreign workers with a U.S. master’s or higher degree will have a greater chance of selection in the H-1B lottery in years of excess demand for new H-1B visas.”
Effective April 1, USCIS will first select H-1B petitions (or registrations, once the registration requirement is implemented) submitted on behalf of all beneficiaries, including those that may be eligible for the advanced degree exemption. USCIS will then select from the remaining eligible petitions, a number projected to reach the advanced degree exemption. Changing the order in which USCIS counts these allocations will likely increase the number of petitions for beneficiaries with a master’s or higher degree from a U.S. institution of higher education to be selected under the H-1B numerical allocations. Specifically, the change will result in an estimated increase of up to 16% (or 5,340 workers) in the number of selected petitions for H-1B beneficiaries with a master’s degree or higher from a U.S. institution of higher education.
USCIS will begin accepting H-1B cap petitions for FY 2020 on April 1, 2019. The reverse selection order will apply to petitions filed for the FY 2020 H-1B cap season. Petitioners may file an H-1B petition no more than six months before the employment start date requested for the beneficiary. USCIS will provide H-1B cap filing instruction on uscis.gov in advance of the filing season.
Importantly, after considering public feedback, USCIS will be suspending the electronic registration requirement for the FY 2020 cap season to complete user testing and ensure the system and process are fully functional. Once implemented, the electronic registration requirement will require petitioners seeking to file H-1B cap petitions, including those that may be eligible for the advanced degree exemption, to first electronically register with USCIS during a designated registration period. Only those whose registrations are selected will be eligible to file an H-1B cap-subject petition. USCIS expects that the electronic registration requirement, once implemented, will reduce overall costs for petitioners and create a more efficient and cost-effective H-1B cap petition process for USCIS and petitioners.
Additionally, USCIS will publish a notice in the Federal Register to announce the initial implementation of the H-1B registration process in advance of the cap season in which it will implement the requirement. Prior to implementation, USCIS will conduct outreach to ensure petitioners understand how to access and use the system. Once implemented, USCIS will announce the designated electronic registration period at least 30 days in advance for each fiscal year it is required.
On April 18, 2017, President Trump issued the Buy American and Hire American Executive Order, instructing DHS to “propose new rules and issue new guidance, to supersede or revise previous rules and guidance if appropriate, to protect the interests of U.S. workers in the administration of our immigration system.” The executive order specifically mentioned the H-1B program and directed DHS and other agencies to “suggest reforms to help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries.”
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.
Breaking News: Bloomberg’s Laura Francis Confirms Significant Increase in H-1B Denial Rates for IT Professionals
I was interviewed by Ms. Francis for this story re: the implications of the latest data from USCIS demonstrating a significant increase in H-1B denials for the IT Consulting Industry. It is hoped that public scrutiny will bring a quick halt to the illegal denials of otherwise eligible H-1Bs petitions, which disproportionately target and affect Indian Nationals.
USCIS’s final rule on changes to the H-1B lottery process adds a requirement that petitioners seeking to file H-1B petitions subject to the regular cap, including those eligible for the advanced degree exemption, first electronically register with USCIS during a designated period. However, USCIS is suspending this proposed registration requirement for the FY2020 cap season in order to complete testing of the new registration system.
The rule also reverses the order by which USCIS selects H-1B registrations (or petitions, for FY2020 or any other year in which the registration requirement is suspended) by first selecting registrations submitted on behalf of all beneficiaries, including those eligible for the advanced degree exemption. USCIS will then select from the remaining registrations a sufficient number projected as needed to reach the advanced degree exemption. This change to the order of the selection process will be implemented for the FY2020 cap season. The rule will be published in the Federal Register on 1/31/19 and will be effective 60 days from the date of publication.
USCIS’s announcement follows:
Increased Time/Difficulty in Filing H-1B Petitions Likely Due to Burdensome New LCA/ETA Form 9035 Form Rolling Out on November 19, 2018
The Office of Foreign Labor Certification (OFLC) of the U.S. Department of Labor (DOL) announced that the new ETA Form 9035, Labor Condition Application (LCA) for Nonimmigrant Workers, will be fully implemented on November 19, 2018. The existing LCA remains valid and the public can continue to file it until November 19, 2018. Employers or their authorized representatives who are filing an LCA on or after November 19, 2018, must use the revised form. Certified LCAs filed prior to November 19, 2018 will also remain valid and can be used by petitioners to support H-1B filings.
AILA has already submitted comments on the proposed revised form during the Notice and Comment period in October 2017 and June 2018. In the latter, AILA noted that the additional time required to complete the new ETA 9035 had been significantly underestimated by DOL and that, “[w]hile the proposed changes are largely helpful, there are nevertheless areas where the proposed changes may (1) violate regulatory requirements; (2) create unnecessary new burdens on employers; and (3) fail in practice to meet DOL’s stated purpose of providing clarification.”
On 11/1/18, the Compete America coalition has issued a letter to the U.S. Department of Homeland Security, U.S. Citizenship and Immigration Services raising the issue that, “The agency’s current approach to H-1B adjudications cannot be anticipated by either the statutory or regulatory text, leaving employers with a disruptive lack of clarity….”
The letter reiterates the major concerns that my colleagues and I have (frequently) raised, beginning with legal concerns about current H-1B adjudications because USCIS appears to have taken leave of two principles underscoring eligible H-1B petitions, “First, the job offered must be in “…an occupation which requires theoretical and practical application of a body of highly specialized knowledge.” Second, a four-year university degree or graduate or professional degree must be the “usual, common, or typical” requirement for the job. Patterns in H-1B adjudications over the last 18 months suggest other standards are being applied.”
The letter identified “patterns in H-1B adjudications that reflect new agency interpretations inserting salary requirements as an unstated prerequisite“, despite the fact that “nothing in the statute or regulations contemplates or suggests, that USCIS could ever take the position that it per se excludes or disfavors entry-level jobs in an occupation, or young professionals working in jobs in an occupation, as qualifying for H-1B specialty occupation approval.”
The origination of this particular pattern arose about 18 months ago, at the end of March 2017, when USCIS issued a surprise policy change effectively holding Level 1 Prevailing Wages to be insufficient in establishing eligibility for H-1B approval, particularly for IT workers. As I’ve previously indicated on this point that the Dept of Labor sets prevailing wage levels for H-1B professions every year in July, in other words, the DOL can and generally does increase these wage levels every year: there was no legitimate statutory or regulatory basis or need for USCIS to have inserted itself in an established wage determination process, nor for it suddenly declare ineligible for H-1B status those jobs with wages otherwise compliant with DOL requirements. This relatively new wage issue seems driven by motives that go beyond simple or logical explanations, especially when we note that the converse argument highlighting the fact that a Petitioner is paying a Level 3 or 4 (highest) wage as an element in establishing Specialty Occupation can be dismissed by USCIS as irrelevant:
Among its other points, the coalition letter also expressed concern as to “Patterns in H-1B adjudications that reflect new agency interpretations beyond the statute’s prerequisites for a “Specific Specialty” of study”. The letter highlights the fact that, “...[n]othing in the statute allows for administrative discretion to restrict a qualifying specialty occupation to only those occupations where “the specific specialty” necessary for the job is only obtainable through completion of a single, exclusive degree.” Despite this, USCIS will normally presume that, “…alternative degree options as the minimum requirement for a job suggest, standing alone, that a specific body of knowledge is not required.”
Quartz India and Harvard Professor’s Insufficiently Researched Proposal on “Fixing the H-1B program”
Quartz India recently published an insufficiently researched proposal by Harvard Professor on “Fixing the H-1B program” in which the Professor erroneously relies on last year’s debunked fake news story claiming the “H-1B minimum wage” is “$60,000“.
To complement wage ranking and to preserve scarce visas for the best uses, America should also raise the H-1B minimum wage from $60,000 to a higher figure like $100,000, perhaps with a few lower thresholds for occupations like social work or entrepreneurship. This minimum level can be designed with automatic adjustments for future years that are based on inflation or changes in average US wages. If a higher minimum wage causes demand to fall short of supply at times, unused visas can be saved and reintroduced when supply becomes again constrained, with visas that sit too long simply expiring. There are downsides to wage floors, such as their mismatch to innovative jobs that may be better served with heavy equity incentives, but minimum wages can provide strong assurances to the public that visas are being put toward best uses.
The Professor appears to have based his magical $60,000 figure on incorrect news articles reporting on U.S. Rep. Zoe Lofgren’s (D-Calif.) proposed legislation last year entitled, the “High-Skilled Integrity and Fairness Act of 2017”. As I had noted on January 31, 2017, there is no $60,000 minimum H-1B wage, and that Lofgren’s legislation was only attempting to increase the level at which an H-1B petitioner could avoid H-1B Dependent status.
And in any case, even if you hypothetically assume that $60,000 was a true figure, there are already simple mechanisms in place increase this level at any time, which in fact have already largely been implemented:
- the Dept of Labor sets prevailing wage levels for H-1B professions EVERY YEAR IN JULY. The DOL can and generally does increase these wage levels every year.
- at the end of March 2017, the USCIS issued a surprise policy change effectively holding Level 1 Prevailing Wages to be insufficient in establishing eligibility for H-1B approval, particularly for IT workers.
On the topic of wages, I wish to note that this Administration seems intent on reducing H-1B approvals, especially to Indian IT workers and their Petitioners, and the wage issue is, in my opinion, already addressed and now just an excuse. Otherwise qualified Level 4 (top) wage earning IT H-1B workers are not automatically spared a denial. The H-1B program, as set out by Congress, has been modified repeatedly by several “pop goes the weasel” style policy changes and multiple “reinterpretations” of existing H-1B laws and guidance at the behest of of this Administration, the latter driven by motives that obviously go beyond simple or logical issues like DOL issued wage rates.