(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]
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.
For current Form I-129 and I-140 processing times, visit the Check Case Processing Times page and the H-1B page on the USCIS website.
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,
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.”
Two of our Appeals of L-1B Specialized Knowledge Worker Denials Were Sustained by the AAO
Three months ago, two L-1B Specialized Knowledge Worker petitions I filed for a client in the manufacturing sector were erroneously denied by USCIS’s California Service Center. However, both of my appeals of these denials were expeditiously sustained/approved by the AAO, which validated our belief that USCIS’s CSC had improperly denied these cases.
Unfortunately, victories as in this case are quite rare: only six other L-1B appeals have been sustained by the AAO thus far in 2018.
In this particular case, my client’s failure to secure the temporary transfer of two of its L-1B Specialized Knowledge Engineers would have had a catastrophic impact on its US manufacturing operations, in which it has already invested tens of millions of dollars. Dozens of its well-paid American employees would have likely seen their jobs transferred to China instead. Though this possibility was thankfully averted by the AAO on an expedited basis a few days ago, USCIS’s error required the Petitioner to waste its time and money while undermining its confidence in our immigration system.
The AAO decisions summary:
I anticipate that USCIS’s efforts to halt or only grudgingly approve legitimate merit-based immigration will continue to discourage outside investment and immigration into our manufacturing sector. Such short-sighted policies are at odds with our history, as immigrants have been key contributors in this field. It was Danish-born Bill Knudsen who architected America’s manufacturing transformation at the outset of World War 2 into the famed “Arsenal of Democracy”. But even Knudsen had available a significant retail manufacturing sector to transform: many of our factories have since packed up and left for Asia because we are no longer only game in town. Therefore, we can now ill-afford to set red-tape or brick walls in the face of companies, like my client, who want to invest in not only “Buying American” and “Hiring American”, but also “Making American”.
Both decisions were published on USCIS’s website: