Ever wonder how the priority date cut-offs are established each month and been curious how the priority dates can fluctuate so drastically as if they are mere sailboats adrift in the wind ? You are not alone. Recently, a Federal Court of Appeals raised serious questions about Department of State procedures used to establish the dates. The Appellate Court closed their opinion by saying that it is not deciding at this point whether or not the Department of State is acting illegally; it is only saying that “the consequences of State’s current operations are quite consistent with [the Plaintiff’s] allegations that [the Department of State] has inadequately heeded [section] 203(e)(1)’s priority principle”. Further proceedings were ordered and this case is worth keeping an eye on.
On April 9, 2015, the Administrative Appeals Office (“AAO”) issued a decision in which it discussed the meaning of “doing business” for EB-1 petitions. In Matter of Leacheng International, Inc., the Petitioner filed an Immigrant Petition for Alien Worker in the classification of multinational manager or executive. To qualify for this classification, it must be established that a petitioner has been doing business for at least one year. Doing business is defined as the “regular, systematic, and continuous provision of goods and / or services by a firm, corporation, or other entity.” See 8 C.F.R. § 204.5(j)(2). The Petitioner is an affiliate of an entity based out of Hong Kong. Both organizations are owned by a Chinese parent company. The Petitioner was responsible for importing and selling the parent company’s products in the U.S. Starting in 2012, the Petitioner began “providing marketing, sales, and shipping services in the United States pursuant to a service agreement with its Hong Kong affiliate.” The case was initially denied on the basis that the evidence “does not indicate ‘doing business’ with independent corporations or entities’ for a full year preceding the filing of the petition, but rather ‘only demonstrate[s] the shipment of goods from the foreign company to the U.S. company.” In reviewing the case, the AAO determined that there was nothing in the regulations that requires that a “petitioner for a multinational manager or executive must provide goods or services to an unaffiliated third party.” Rather, a petitioner may prove that it is doing business “by demonstrating that it is providing goods and / or services in a regular, systematic, and continuous manner to related companies within its multinational organization.” In reviewing the evidence, the AAO instructed that the totality of the record should be reviewed and “the fact that a petitioner serves as an agent, representative, or liaison between a related foreign entity and its United States customers does not preclude a finding that it is doing business.” This case provides important information on what types of activities will qualify as “doing business” for purposes of an EB-1 filing.
USCIS recently announced that it received 233,000 cap-subject H-1b petitions for the 2016 fiscal year. Initially, it stated that it would begin adjudicating cases that were filed through the premium processing service on May 11th, 2015. However, USCIS has updated this date to April 27th, 2015. The delay in reviewing these cases that were submitted through premium processing is due to the historic premium processing receipt requests.
Horno MSJ Ltd. Co. is a bakery in San Antonio, Texas which opened in March 2006. It is jointly owned by an elderly married couple. ICE served Horno with a Notice of Inspection (NOI) and subpoena on July 31, 2012. The inspection of the I-9s was scheduled for several days later. Horno presented 26 original I-9s and various other documents. After the inspection ICE served Horno with a Notice of Suspect Documents (NSD) and a Notice of Discrepancies in September 2012. A Notice of Intent to Fine (NOF) was served on March 5, 2013. ICE found that Horno failed to present nine Form I-9s and that the 26 I-9s presented were deficient. ICE fined Horno over 31K for the 32 violations. Horno argued that it was not required to present the nine Form I-9s since those individuals never showed up for work. However, the Administrative Law Judge found Horno was indeed liable since they paid these nine individuals to attend orientation, thus they were Horno’s employees and as such, Horno was required to have each individual complete Section 1 of the Form I-9 since the regulations require that it be completed on the first day of hire. Based on their size, the nature of the violations and the current status of the business, the ALJ ultimately lowered the fine to $14,600. The moral of this story is that if as an employer, you must make sure that you begin the Form I-9 process, especially if you pay applicants to attend orientation and/or training and make sure on that first day that they complete Section 1.
The USCIS today announced that it had received approx. 233,000 H-1b cap subject petitions to be included in the lottery for 85,000 visas. They further announced that the lottery had been completed. They did not indicate when receipts would be issued but, did remind everyone that they expected to begin processing premium process filed cases by May 11th. Whether this the volume of cases filed will spur Congress to act on legal immigration is unknown but, I’m not holding my breath.
In a decision released last week, the AAO declared that a work-site location change outside of the original MSA requires the filing of an amended H-1b petition. This change will have significant impact on staffing cos., many whom have followed DOL and USCIS HQ guidance which supported the conclusion that only the filing and posting of a new LCA was required when an employee’s work site changed. The I-129 form itself declares that an amended petition is not required when changing the location of an H-1b employee if you have filed and posted an LCA at the new work-site prior to the move. It is not known whether USCIS HQ supports this AAO decision or will issue further clarifying guidance to essentially overturn this decision. In the meantime, this decision leaves employers in an era of uncertainty. HLG will be hosting a teleconference for clients on Fri. April 17th to discuss this topic. More details will be released early this week.
In a surprise to absolutely no one, the USCIS today announced that it had received petitions in excess of the 20,000 H-1b U.S. Masters cap and the 65,000 regular H-1b cap and a lottery would be held. They did not disclose the total number of petitions received and they did not disclose when the lottery would be held. Receipts will not be issued until after the lottery is held. We will provide further updates as they become available.
Today is the 1st day that the USCIS will accept H-1b cap cases for FY 2016. The USCIS is expecting over 200,000 cases will be received in the first 5 business days of April. All of these cases will be entered into a lottery from which 85,000 lucky petitions will be chosen and processed. The USCIS will post updates on the number of petitions received, when the lottery will be held, when receipt notices will be issued and when premium processing will start. We will also update you as developments occur.
It seems like an absurd headline doesn’t it ? We are in 2015 in what we claim is one of the most enlightened countries in the world and this current administration certainly talks a good game about equality, transparency and fair treatment for all. The reality is far different at the USCIS. In a not so surprising discovery, the National Foundation for American Policy, released a report that disclosed that if you happen to be an Indian national that your odds of being denied an L-1 visa are 5 times greater than if you were from another country. From 2012-2014, the USCIS denied an astounding 56% of L-1b petitions for persons from India. Is there an explanation other than blatant discrimination ? Sure there is but, not a credible one. USCIS examiners at the urging of powerful political interests have linked outsourcing (which is the devil incarnate) to the L-1b visa and USCIS examiners have been doing their “patriotic duty” by denying as many L-1b visas as they can. The legal standard and meritorious nature of the case be damned. The economic impact to US business is irrelevant. The argument that denials actually eliminate US jobs and force greater outsourcing, often forcing US citizens and residents to be transferred overseas falls on deaf ears. When you don’t want to hear that a certain class of person should be treated fairly, there is no reason to listen. Deny! Deny! Deny! is the rally cry in the halls of the Vermont and California Service Centers ! In 2006, the denial rate for L-1b petitions was 6%; in 2014, it was 35% without a single regulatory or statutory change. It’s time to call it what it is ! Disparate treatment of one petition over another simply by virtue of one’s national origin.