The U.S. District Court for the District of Columbia recently determined that a union that represents technology workers has standing to sue the U.S. Department of Homeland Security on the basis that these workers were harmed by the U.S. Optional Practical Training (“OPT”) STEM extension program. In Washington Alliance of Technology Workers v. U.S. Department of Homeland Security, the court considered whether a collective-bargaining organization that represents science, technology, engineering, and mathematics workers had standing to sue the U.S. government on the basis that the OPT program and OPT STEM extension program had injured the U.S. workers represented by this union. The plaintiff argued that these programs had increased competition for STEM jobs, which harmed its union members. Specifically, three union members were unable to obtain employment with JP Morgan Chase, Ernst &Young, IBM, and Hewlett Packard between 2010 and 2011. During this same time period, these organizations employed OPT STEM employees. The District Court stated that to establish standing, the plaintiff must show that: “(1) it has suffered an injury-in-fact, (2) the injury is fairly traceable to the defendant’s challenged conduct, and (3) the injury is likely to be redressed by a favorable decision.” Since there was no allegation in the complaint that the union’s workers applied for roles that were filled by OPT workers, the first three complaints were dismissed. In reviewing the remaining complaints, the court did find that the three workers “are specialized in computer technology, and they have sought out a wide variety of STEM positions with numerous employers, but have failed to obtain these positions following the promulgation of the OPT STEM extension in 2008.” Since the court found that these workers were “in direct and current competition with OPT students on a STEM extension,” the court found that the plaintiff had standing to sue on the remaining claims. While the STEM program is applauded for providing work authorization to individuals who have needed science, technology, engineering, and mathematics training in the U.S., this case shows that some unions believe that U.S. workers are being harmed.
AAO Determines that Beneficiary Cannot Use Experience Gained with the Petitioner to Qualify for a Sponsored Role
In an unpublished decision, the Administrative Appeals Office (“AAO”) considered whether the Beneficiary of a filed I-140 Immigrant Petition for Alien Worker could use experience gained at the sponsoring employer to demonstrate that he met the requirements of the role. In this case, the sponsoring employer filed a labor certification for the position of repairman and stated that this position required two years of experience. The employer also listed in the labor certification that the Beneficiary had over two years of experience as a repairman at a prior employer and close to six years of experience with the sponsoring employer. When the I-140 was filed, the employer only provided documentation demonstrating the experience that the Beneficiary obtained with it. The case was denied. In filing this appeal, the sponsoring employer argued that USCIS should “be focusing on whether the beneficiary was qualified for the position offered before the priority date . . . rather than whether the beneficiary was qualified before being hired by the Petitioner.” In denying the appeal, the AAO stated that the employer was attempting to qualify the Beneficiary through the experience he gained while working for it. However, since the Beneficiary’s experience with the sponsoring employer was substantially comparable to the position offered, this experience could not be used to establish that the Beneficiary had the necessary qualifications for the role. While there are provisions in the law that allow employers to use experience that a Beneficiary obtained while working for a sponsoring employer, they involve specific requirements that the employer and Beneficiary must meet in order to be successful. The Hammond Law Group is always happy to discuss these types of cases to determine whether it is feasible to use experience gained at a sponsoring employer in the greencard context.
The Staffing Industry Analysts (SIA) published an article discussing the impact of President Obama’s Executive Action on staffing companies and HLG partner, Mike Hammond is quoted.
On Thursday, November 20, 2014, President Obama announced a number of measures that will reform our immigration system. While some of these provisions do not relate to employment-based immigration cases, there are several items that will provide clarification and relief for employment-based cases. Many of the specific details about how these changes will be implemented are still being released. However, please fund a summary below.
Adjustment of Status Applications
Individuals who have an approved employment-based immigrant petition and who have been unable to file their adjustment of status due to the quota backlog will be allowed to pre-register to receive adjustment of status benefits when their I-140 is approved but no priority date is available.
Guidance will be released to clarify the meaning of “same or similar” occupation. This is expected to allow broader flexibility to change jobs after the I-485 has been filed.
Guidance is expected to be released to illuminate the meaning of “specialized knowledge.”
Regulations are expected to be released in December or January to allow work authorization to certain H-4 nonimmigrants based upon their spouse’s permanent residence application.
Optional Practical Training:
Regulations will be released to expand the length of time that a STEM graduate may work through OPT authorization. This regulation will also expand the types of degrees that will be eligible for OPT. USCIS is also being directed to implement stronger “ties to degree-granting institutions, which would better ensure that a student’s practical training furthers the student’s full course of study.”
The Department of Labor will review and revise the PERM system, including modernizing the recruitment methods.
The Hammond Law Group is thrilled that the President is taking needed action to promote reform in our immigration system.
Lost in the President’s plan to provide relief to millions of undocumented/illegal people here in the US were major changes that will be hugely positive for H-1b workers and employers alike. A summary will be posted later today and more details provided as they become available but, the highlights include: the end of retrogression for US based workers (well, almost); elimination of the need for most h-1b extensions; in many cases, the advantage of being EB2 vs. EB3 would be eliminated; clearer L-1b rules; and, greater portability for H-1b workers which means easier access to resources for US employers. Nice job Mr. President !
The White House has announced that President Obama will proclaim the executive actions he will take on immigration tomorrow night at 8pm eastern. Proponents of business reforms should expect to be disappointed as it is not believed that he will take any action to address retrogression. However, it is expected that he will extend the STEM OPT period for US graduates. The White House believes this action will impact the number of H-1b cap filings. We believe that this change will have a positive impact on any US grad who was not so lucky, to have been chosen in the lottery but, will have no impact on the overall number of H-1b cap filings. The connection between those two, we think is mis-placed. We will provide a summary after his speech.
The Department of State has released the December Visa Bulletin and there were no surprises. EB3 for “all other countries”, China, and the Philippines moved forward another 5 months while all other categories held steady or moved at a snails pace. Retrogression relief is badly needed and with the newly elected Senate, it is not likely to come without Presidential action.
U.S. Citizenship and Immigration Services (USCIS) Director León Rodríguez has announced the launch of the myE-Verify website. A link to the new page can be found here. Unlike the original E-Verify website, which was more focused towards employers, this website is designed for employees. The new features of myE-Verify include:
- myE-Verify accounts – Allows employees and job seekers to set up free and secure personal accounts to manage the use of their information in E-Verify and Self Check through the available myE-Verify features.
- Self Lock – Allows individuals to lock their social security numbers to prevent unauthorized or fraudulent use within E-Verify. Users can proactively protect their identities from being used by others to illegally gain employment. Self Lock is available only to myE-Verify account holders.
- myResources – A section of the myE-Verify site that contains information in multi-media formats to educate employees about their rights as well as responsibilities of employers in the employment eligibility verification process.
The idea behind the new addition to the myE-Verify website allows employees to take a more active role in their employment authorization in the United States; allowing them to quickly and securely get and receive information concerning their eligibility to work.
On October 31, 2014, the Embassy of the United States in Kingston, Jamaica issued a notification that placed extensive restrictions on third country nationals who hoped to attend an appointment in Kingston to receive a visa stamp. This notification can be found here. Specifically, the following individuals who do not hold long-term status in Jamaica may not apply for a visa stamp at the Consulate in Kingston:
- Applicants who changed status with Department of Homeland Security in the U.S. and who are seeking a new visa in the new visa category.
- Applicants who entered the U.S. in one visa category and are seeking to re-enter the U.S. in a different visa category.
- Applicants who have been out of status in the U.S. having violated the terms of their visas or having overstayed the validity indicated on their I-94s.
- Applicants who obtained their current visa in a country other than that of their legal residence.
- Petition-based first time applicants.
- Third country nationals who are not resident in Jamaica and who are applying for a B1/B2 visa (including B1/B2 renewals).
As can be seen, this list applies to a wide range of applicants. Due to these restrictions, the Hammond Law Group recommends that visa stamping applicants who are third country nationals avoid the U.S. Embassy in Kingston. If you are a third country national and believe that your visa stamping request in Kingston does not involve one of the categories outlined above, we suggest that you contact the Hammond Law Group to discuss whether attending a visa stamping appointment in Kingston is a feasible option.