USCIS Provides H-1b Lottery Update

Today, the USCIS has announced additional information regarding the April 2020 (FY 2021) H-1b cap lottery electronic registration program that was first announced in January of 2019. The proposed rule will be published on Sept 4th and can be viewed here. The comment period will last 30 days and our firm expects to submit comments on behalf of our clients. We applaud the USCIS on taking steps to modernize its processes and allow for electronic registration for the H-1b cap lottery. We will provide a summary of the proposed rule later this week after the rule is published and reviewed.

Trump Continues to Create a Boon for Tech in Canada !

Once again, the Buy American, Hire American (BAHA) policy of President Trump which has resulted in higher rates of denials for professional IT workers has had unintended (or maybe not) consequences which has resulted in IT jobs leaving the US and going to Canada. Check out this recent summary on Law 360.

Site Investigations of OPT STEM Students

It is being reported by Forbes, that ICE has now started site investigations of OPT STEM workers to verify that their employment is in compliance with USCIS regulations and policy. The 2 primary questions they are likely to address are: 1. Is the student being paid at least a Level 1 prevailing wage ? and 2. Is the student being provided training by their employer in accordance with the training program (I-983) submitted to the school and the USCIS ? As an employer, now may be a good time to audit your OPT STEM workforce and insure that you are in compliance.

Congress Asks Questions but, gets no answers

Tired of all the delays, RFE’s and denials from the USCIS ? You are not the only one and there have been enough complaints and deviations over past practices without any substantive change in the law for Congress to be concerned enough to hold a hearing and ask USCIS, What’s up ? Unfortunately, they got no answers ! Check out this story from Forbes.

Shortened H-1b Approvals

Although I routinely say that I prefer a shortened H-1b approval over a denial, I often see the frustration on the part of my IT and engineering staffing and solutions companies when they get an H-1b approval shortened to the date of the current JO,PO, or SOW expiration. We can only assume that USCIS examiners are not ignorant to the realities of PO’s etc and fully recognize that they are often issued in quarterly or yearly periods that do not necessarily reflect the full-time of the engagement; consequently, we must assume that the USCIS practice is but, another effort to create a chilling effect on the use of H-1b visas. Now it appears that this practice has shifted from the staffing industry to also impact other industries. Check out this recent Bloomberg article. From my own practice, I recently had a Fortune 500 client asked to prove that they had sufficient work for an IT professional to do for the full 3 years sought.

Expect H-4 Processing Delays

At a recent stakeholder phone conference, USCIS has confirmed that because of the new version of Form I-539 and the addition of the bio-metric appointment for dependent applications, USCIS will no longer offer premium processing as a courtesy to these types of applications. Even when filed concurrently. This is a huge hit for anyone on H-4 working on an H-4 EAD.

Those that fall into this category should be prepared for lengthy delays (average processing time for H-4’s posted by USCIS at VSC is 6 Months to 8 Months, which better reflects the realities of longer processing times) and gaps in their ability to work as the adjudication of their H-4 EAD will also be delayed.

H-1b Denial Upheld in Federal Court

Earlier this week, a Federal Judge in Washington D.C. upheld a USCIS decision denying an H-1b transfer petition for a QA Analyst under the theory that the position was not a specialty occupation. This decision is a major win for the Trump administration as the Court deferred to the Agency’s interpretation of the definition of a specialty occupation. The Court did not address the single degree issue. There are a number of facts that are relevant when viewing this decision. The petition was filed under the 15-1199.00 SOC classification as a Quality Assurance Engineer/Tester, a category that lacks DOL support for a specialty occupation finding. Further, the petitioner in its petition declared that many different educational fields would be suitable for such a position and named such disparate fields as sciences, engineering, and mathematics. The petition even stated that the position would accept a “wide range of specialties” ! Its as if this petition was drafted with an eye toward a denial or a failure to recognize the standards for an H-1b that have been the norm for the past 2+ years. Its unfortunate that this case was brought in front of a Federal Judge with these facts. As the old adage goes, bad facts, make bad law.

August Visa Bulletin

With the release of the August Visa Bulletin, the Department of State (DOS) forced everyone not born in India, China or the Philippines to learn the term retrogression as the final action dates for all categories for all countries retrogressed to dates ranging from Jan 2006 to Jan 2017. This “end of the year” phenomenon is created by the usage by the USCIS (I-485 cases) and the Consular posts (CP cases) of the allotted number of immigrant visas for a fiscal year. In other words, approvals of green cards exhausts the allotment thereby creating retrogression; so in effect, this is a good thing. Many years ago, all allotted immigrant visas were not utilized thereby wasting them as there is no carry-over so even though this recent retrogression may appear to be a bad thing, it is better than the alternative. The DOS expects priority dates to return to July 2019 dates when the new fiscal year starts on October 1, 2019.

BALCA Clarifies How Employers May Use One Advertisement to Support Multiple Labor Certification Applications

In a recent case, the Board of Alien Labor Certification Appeals (“BALCA”) revealed the potential problems of using one advertisement to support multiple applications and how employers may avoid these potential issues. In Capgemini America Inc., 2013-PER-02219 (May 29, 2019) the employer submitted an Application for Permanent Employment Certification (“Form 9098”) for the position of “Computer Systems Analyst.” The employer’s recruitment materials for this application all advertised multiple “IT openings” and listed numerous job requirements, some of which were not listed on the Form 9098. BALCA affirmed the Certifying Officer’s denial, explaining what while employers may use a single advertisement to support multiple applications, the advertisement must make clear if some of the listed job duties apply to only certain positions. Since the advertisements in question did not clarify which of the listed job duties applied to only some positions, the advertisements failed to apprise U.S. workers of the job offered.

This case is thus a reminder that when using a single advertisement to support multiple applications with divergent job duties, employers must carefully draft their advertisements to specific when some of the listed job duties do not apply to all of the job openings.

Fairness for High Skilled immigrants Act of 2019 up for Vote

The House is expected to vote tomorrow on the Fairness for High Skilled Immigrants Act of 2019. This bill would remove the per country limits from the green card quotas thereby significantly reducing the wait times for those from India and China. The flip side is that it would lengthen the wait time for everyone else without further amendments. The House version has 311 co-sponsors and is expected to pass in spite of strong and vocal opposition from the Stephen Milleresque Republicans (aka white nationalists and anti legal immigration camp)Check out but one example of the right wing propaganda being raised in opposition to the bill here. A somewhat more balanced perspective (in spite of its tendencies) can be found here. The White House has not expressed an opinion on this particular bill however, the current immigrant visa system is not consistent with the plan President Trump had his son in law (fresh off of bringing peace to the middle east) unveil to the sound of crickets a few months ago. The Senate version of the bill failed to move forward last week halted by Senator Rand Paul however, his opposition was not to the principles of the bill but to the reality that it would destroy immigration for Registered Nurses. If this bill passes the House, it is expected to be revived in the Senate. Its passage remains murky but, at least the issue is being considered.