HLG to host seminar in NJ/NYC

HLG will host a seminar in the NJ/NYC area on Fri. Aug 18th. The seminar will discuss some of the changes that have been made that impact business immigration and will give practical advice on how to address those changes in your business. Registration is free. For details go here.

By |May 22nd, 2017|Events|0 Comments|

June Visa Bulletin

Retrogression rears its ugly head again in the June Visa Bulletin as the EB1 categories for India and China retrogressed from “current” to Jan 2012. This was predicted in the prior Visa bulletin and noted in this space so no surprise but, still troubling. It is expected that the dates for these 2 categories will return to ‘current’ with the new fiscal year and the October bulletin. Other categories saw small but, steady movement forward.

USCIS to begin returning rejected H-1b lottery cases

The USCIS has announced that it has completed the data entry of all H-1b cap lottery cases and that rejected cases will begin to be returned next week. Receipts are expected to continue to trickle in over the next week. The USCIS did not provide an estimate for when all receipts or rejected cases would be sent out but, we expect it to be another 4- 6 weeks.

H-1b Reform What’s next ? Anything ?

As the H-1b industry has absorbed the impact of the Executive Orders issued over the past month, questions arise as to what is next ? As most experts agree, EO’s have limited impact on the H-1b outside of a chilling effect on employers and workers alike, and though this should not be diminished as insignificant, big changes that may last for decades can only come through legislative change. A nice summary of where we stand at present and what might be coming was published in Computerworld last week. Check it out here.

Calculating Your EB Experience Time

On April 17, 2017 an immigration policy memorandum was issued by the Service adopting “Matter of O-A- Inc.,” a copy of the memo can be found here, as a guidepost for USCIS decisions going forward. This case was focused on whether, at the time a provisional certificate is issued, a beneficiary has completed all substantive requirements to earn the degree and the university or college has approved the degree.

In this case, the beneficiary’s provisional certificate was issued May 17, 2006, but she did not receive her formal diploma until March 30, 2007, according to the decision. The priority date was Oct. 23, 2014. The director concluded that the beneficiary fell short of the five-year requirement because she accrued four years and eight months of qualifying experience between the diploma date and the priority date, but the agency said that, based on the evidence in the record, the issuance of the provisional certificate conferred the foreign equivalent of a U.S. bachelor’s degree. And the agency found that she had obtained at least five years of qualifying post-baccalaureate experience.

It was determined that the provisional certificate, together with the beneficiary’s statement of marks, showed that she had completed all the substantive requirements for her degree and that the university approved her degree. As such, the agency determined that the petitioner had shown that the beneficiary met the minimum education and experience requirements of the labor certification and EB-2 classification and sustained the appeal.

Going forward, the Service has been directed to conduct case-specific analysis to determine whether a beneficiary who received a provisional certificate had completed all requirements to earn the degree and that the school had approved the degree at the time the certificate was issued. This is good news for those beneficiary who get their provisional certificates much earlier than their diplomas.

Attacks on Trump’s EO

The attacks on Trump’s new EO are growing in number as people review what the EO is trying to achieve. An article in The Federalist is worth reading. Another article at SHRM.org discusses the limitations that the President has in making meaningful changes to the H-1b program without legislative action.

Buy American and Hire American

Yesterday, President Trump issued an Executive Order impacting business immigration specifically, the H-1b visa. The order makes NO immediate changes to the H-1b program but, changes they are a coming. The EO essentially makes two (2) directives. First, it orders all agencies that touch the H-1b program to review all of its policies and regulations and write new policies and regulations to further protect US workers and prevent fraud and abuse in the H-1b program. Long-term, this may result in new proposed regulations which will be the subject of notice and comment. In the next few months, this may mean more policy memos, such as the memo released in late March which changed 20 years of policy and declared that many computer programmer positions would no longer be considered H-1b level occupations. As we saw with the introduction of the Neufeld policy memo in 2010, policy memos can have a major impact on a visa category. Immediately, I think we will see an increase in H-1b site visits; DOL LCA audits; 221(g) and administrative processing by US Consulates at visa stamping; RFE’s; use of the NOID in place of the RFE; NOIR issuances; and, denials. The President is proclaiming that H-1b visas harm US workers and there is rampant fraud and abuse and by his comments and this EO, he is directing his administration to do everything in its power to right this wrong. If we thought the “culture of NO” which was pervasive during the last Administration was strong, we now expect to see the “culture of HELL NO”
Secondly, the EO requests that the agencies involved devise a new scheme to replace the H-1b lottery and award the limited pool of H-1b visas to the “most-skilled or highest paid”. The assumption being made in this EO is that the majority of H-1b visas are awarded to low paid workers. New grads from US schools make up at least 20,000 of the H-1b lottery pool and by many estimates, at least a 3rd of the lottery winners and new grads are appropriately paid at the low end of the wage scale. There are a number of problems inherent in any scheme that awards H-1b visas only to the highest paid eg. rural areas will be at a major disadvantage over large cities; some occupations such as healthcare and research will not be able to compete with even the low end salaries paid to IT and engineers; and, large companies will have an advantage over start-ups.

Contrary to the “Buy American” provisions in this EO, there were no timetables set for the immigration related provisions.

The reaction to the President’s EO came quickly with most declaring this is nothing more than chest thumping and a horrible solution in search of a problem. One prominent immigration attorney quoted MacBeth (surely you know the line) and I must admit I responded to an email yesterday about this subject by sending back a pic of a person blowing hot air however, as I outlined above, this will have ramifications. There is no question that we need immigration reform but, it needs to be legislative in origin and needs to be based upon facts and not mere anecdotes tainted by either fear or hatred of immigrants.

199,000 H-1b cap filings

Today, the USCIS announced that it had received 199,000 H-1b cap subject petitions and that it has completed the random lottery. We expect to start seeing receipts over the next few weeks and rejected cases to start arriving within the month. At this point, we do not have an estimate as to how long it will take to obtain all receipts and/or rejections but, last year, all were not processed until July.

May Visa Bulletin

In huge news, (not covered by CNN, Fox, or anywhere else, fake or otherwise) the EB3 category for India surged forward by one (1) entire day ! The rest of the Visa Bulletin was not much better as it announced that the EB1 category will soon retrogress for India and China and the EB2 category for the “all other world” and the Philippines will retrogress as early as July. Although summer retrogression is a necessary byproduct of the use it or lose it statutory scheme that allocates immigrant visas, it can be disruptive. We remain hopeful that among all of the talk of the need for immigration reform that retrogression relief is a topic being considered. You can find a copy of the May Visa bulletin here.

H-1b cap reached and lottery to be held !

In news that is not really news but, expected by everyone, the USCIS announced on Friday, that they had received sufficient filings to exceed the H-1b cap for FY 2018 and a lottery will be held to determine which petitions will be processed.