It’s not you, it’s everyone ! H-1b RFE’s

As we all lament the increasing number and stupidity of the H-1b RFE’s we are seeing, it’s nice to know we are not alone. That old phrase of misery loves company comes to mind ! Check out this excellent blog post from one of my favorite AILA attorneys. (Yes, I am jealous that she can dye her hair and I can’t !)

Why I-9 Compliance Remains Important

On August 7, 2017, the Ninth Circuit upheld charges against DLS Precision Fab LLC, a now bankrupt sheet metal company, which resulted in $305,000 in penalties for employing unauthorized immigrants. In this decision the court rejecting the company’s arguments that a rogue HR director was to blame.

DLS was found to have failed to comply with the INA’s worker verification requirements and employed more than a dozen individuals known to be ineligible to work in the U.S. DLS attributed its failure to properly vet employees on a rogue HR director who, unbeknownst to it, shirked compliance to the point “of literally stuffing the government’s correspondence in a drawer and never responding.” The Court was not persuaded by this argument.

The bulk of the charges stem from I-9 violations. I-9 violations are not merely violations when filed but remain continuing violations until DLS is no longer required by law to retain them (three years from the date of hire or one year after termination). As for retaining eligible employees, the clock starts upon termination. DLS was therefore not able to use the statute of limitations as a defense.

While these appear to be a pretty blatant violations, it is still a good reminder that properly vetting your employees and maintaining your I-9 records is very important.

September Visa Bulletin

The Department of State (DOS) has released the final visa bulletin of this fiscal year. The Final Action dates remained virtually unchanged for India and China but, the Philippines EB2 and EB3 saw big jumps forward as did EB2 for all others. The DOS also announced that the worldwide limit for FY-2017 was set at 140,000 for employment based and the per-country limit was affixed at 25,620. With the October Visa Bulletin, the new fiscal year will start and we expect several retrogressed categories including EB1 India and China and EB2 all other and Philippines to return to current.

Latest on Trump’s Immigration Reform

On Wednesday, August 2, 2017, President Trump endorsed a new bill in the Senate aimed at slashing legal immigration levels, the Reforming American Immigration for a Strong Economy (RAISE) Act. This bill is a modified version of a bill senators Tom Cotton (Ark.) and David Perdue (Ga.) first introduced in April to cut immigration by half from the current level of more than 1 million green cards per year. To achieve this reduction and create what they call a “merit-based system,” Cotton and Perdue are taking aim at green cards for extended family members of U.S. citizens and legal permanent residents, limiting such avenues for grown children and siblings. Minor children and spouses would still be eligible to apply for green cards.

The highlights of the Senators’ bill propose to end the visa diversity lottery that awards 50,000 green cards a year, to areas in the world that traditionally do not have as many immigrants to the United States. The bill also caps refugee levels at 50,000 per year. Under the bill, the proposed immigration system would award points to green card applicants based on such factors as English ability, education levels and job skills. The senators said the proposal is modeled after immigration programs in Canada and Australia.

However, the bill’s prospects are dim in the Senate where Republicans hold a narrow majority. The legislation is expected to face fierce resistance from congressional Democrats, immigrant rights groups and business leaders, as well as, some moderate Republicans in states with large immigrant populations. Alex Nowrasteh, an immigration policy analyst at the CATO Institute, wrote in a blog that the bill “would do nothing to boost skilled immigration and it will only increase the proportion of employment-based green cards by cutting other green cards. Saying otherwise is grossly deceptive marketing.”

The impact to H-1b visas of “Buy American Hire American”

The USCIS is hosting a public feedback call today to explore how the President’s Executive Order of “Buy American Hire American” will impact the adjudication of visas without the enactment of new legislation. (there is something inherently un-American about that preceding statement but, alas, it is our current reality) Registration is free. We will be providing a summary after.

The Future? of the EB-5 Program

Numerous EB-5 legislation has been introduced with the intention of curbing some of the EB-5 program’s issues and problems. S.1501, the American Job Creation and Investment Promotion Reform Act of 2015, introduced by Sen. Grassley and Sen. Leahy, included a laundry list of EB-5 “integrity” measures. Sen. Charles Grassley and Sen. Dianne Feinstein, have proposed legislation to eliminate the EB-5 program.

In order to attempt to under the EB-5 landscape as it stands in the current political climate, we must understand the players:
Stephen Miller, Senior Advisor to the President for Policy, is a Former Senator Jeff Sessions alum who is well known for his opposition to legal immigration.

Gene Hamilton, Deputy Chief of Staff at the Department of Homeland Security (DHS) for Policy and Senior Counselor, is also a Sessions alum.

Lee Francis Cissna, nominee for Director of U.S. Citizenship and Immigration Services (USCIS), most recently assisted Sen. Grassley to write the H-1B and L-1 Visa Reform Act of 2015, a bill that would have dramatically enlarged the enforcement authority of the U.S. Department of Labor and restricted H-1B and L-1 visa requirements and benefits as well as S.1501.

Kathy Nueble Kovarik, Chief of the USCIS Office of Policy and Strategy, is also a Grassley alum.

Julie Kirchner is the USCIS Ombudsman. Ms. Kirchner served as Executive Director of FAIR, an organization actively opposed to the EB-5 program.

The USCIS Ombudsman is responsible for assisting “individuals and employers in resolving problems with” USCIS and due to limits recently placed by way of EB-5 protocols, is the only way for EB-5 stakeholders to escalate issues for EB-5 cases.
Ms. Kirchner, in her Ombudsman’s 2017 Report to Congress, acknowledged that lack of anti-fraud and national security protections, and failure to agree on a permanent or multi-year reauthorization of the Regional Center program, have resulted in adverse consequences. In addition, legislative efforts have stalled over the methodology for determining TEAs, the two-tiered investment framework and effective dates for new provisions. We are also seeing increased USCIS adjudications times and longer waits for Chinese nationals due to visa backlogs.

Most recently, on November 30, 2016, the Department of Homeland Security (DHS) announced the expansion of the USCIS Policy Manual which introduced a new section, Volume 6: Part G, Investors. Part G consolidates and replaces policy guidance found in the Adjudicator’s Field Manual (AFM) Chapters 22.4, Employment Creation Entrepreneur Cases, and 25.2, Entrepreneurs (Form I-829), as well as related AFM appendices and policy memoranda.

While comprehensive guidance is good, the new section of the USCIS Policy Manual is often unclear; provides little in the way of examples and definitions; ignores common and acceptable practices, definitions, and methodologies; and misstates or misinterprets the regulations.

Some of chapters with problems of note for the direct investor include the following:

Chapter 2.A.5 – Targeted Employment Area
• Confirms that a TEA will cease to qualify as a TEA over time if unemployment decreases or population increases. This text is problematic because of the uncertainty it introduces into the planning of EB-5 projects as the USCIS will continue to evaluate and re-evaluate TEA designation.
• Does not mention current USCIS practice granting state TEA designations a validity period of 12 months.
• Not clear as to when an area must qualify as a TEA.
Chapter 2.D.3 – Full-Time Positions for Qualifying Employees
• Refers to the job creation requirement to be “full-time and permanent” when both the INA and the CFR refer to the term “full-time.”
Chapter 4.C – Form I-526/Material Change
• Provides that a “change is material if the changed circumstances would have a natural tendency to influence or are predictably capable of affecting the decision” without providing examples to clarify what would be considered a “material change.”
Chapter 5.C – Removal of Conditions/Material Change/At Risk
• Misstates the plain language of the regulation by requiring evidence that the “at risk investment was sustained throughout the period of the petitioner’s conditional permanent residence in the United States.” The regulations only require investment be sustained “over the two years of conditional residence.”
• Excludes language confirming that an investor maintains his or her conditional permanent residence status even after the denial of the I-829 until a final administrative appeal is complete.

It is unknown if Ms. Kirchner and Mr. Cissna will be able to together resolve the issues and problem plaguing the EB-5 program. For the time being, we must utilize any and all means available to seek results for worthy cases. We should and must continue to submit well-document cases, participate in stakeholder meetings, advocate strenuously, and litigate if appropriate.

Should you have any questions about the future of the EB-5 program, please contact your HLG attorney.

H-1b Premium Processing Update

The USCIS announced yesterday that it was adding “cap-exempt” H-1b petitions to its list of the types of I-129 H petitions which could use the premium processing option. Cap-exempt petitions are most commonly used by universities and non-profits affiliated with them and non-profit research institutions. Last month, the USCIS restored premium processing services to Conrad 30 filings (certain physicians) and they have a goal to restore all premium processing services by October 1st.

Immigration Reform ? Possible in 2017 ?

It is being widely reported that the Trump Administration may be interested in trying to pass Comprehensive Immigration Reform (CIR) this year. Several of President Trump’s key advisers are unabashedly anti legal immigration but, to get CIR passed, it is likely that the legislation will need to contain some positive improvements in the legal immigration programs in order to get the needed votes to succeed. As legislation moves forward, we will keep you updated.

Start-up Entrepreneur Rule Delayed

Last week, the Trump Administration delayed the implementation of the Start-up Entrepreneur Rule until March of 2018. Although the rule as written, would have impacted only a limited number of investors each year, its delay after federal rule making and a notice and comment period, is believed by many to provide further proof that, in spite of campaign claims to the contrary, President Trump’s administration is as much of an enemy of legal immigration as illegal.

August Visa Bulletin

The Department of State (DOS) recently released the August Visa Bulletin Big jumps were seen in EB3 India and EB3 Philippines however, these jumps were not unexpected as the DOS continues to make progress toward meeting the Dates for Filing chart released at the beginning of the fiscal year. In theory, by the end of the fiscal year, all dates listed in the Oct 2016 Dates for Filing chart will have been met during the fiscal year. EB2 for the Philippines and the rest of the world (ROW) retrogressed but, they are expected to return to current when the new fiscal year starts in Oct 2017.