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USCIS Scores Victory in Federal Court Over H-1b Company

We often hear about the victories that IT cos. have been scoring over the USCIS when litigating H-1b denials relative to specialty occupation, beneficiary qualifications, and employer-employee relationship issues; and, the wins are numerous. We rarely hear about the losses but, recently a Federal Court in Az. ruled against an IT company’s pursuit of a preliminary injunction over 18 denials. The Court ruled that the company had not proven irreparable harm in denying the motion. The lawsuit remains pending on the substantive issues. A full copy of the decision can be read here.

Travel Ban Explained

On Friday, January 31, 2020, President Trump issued a new set of travel restrictions for nationals of certain foreign countries. This is an expansion of the “travel ban” issued in 2017, as both draw their power from the Immigration and Nationality Act, Section 212(f).
The foreign nationals affected are those from Burma (Myanmar), Eritrea, Kyrgyzstan, and Nigeria.
This does not affect nationals of those countries if they are already present in the U.S. For example, if you have a Nigerian employee on H-1B, they may remain employed. You are also perfectly fine to start or continue a permanent residency case (PERM, I-140, I-485) via employment-based sponsorship.
Non-immigrant visas, such as H-1b, TN, L-1, O, etc are not impacted.
Students are also unaffected. For example, you may continue to employ a Kyrgyzstani student on Optional Practical Training. Nationals from affected countries are also permitted to extend or change status in the U.S.—they may apply for a STEM OPT extension, and/or you may place them into the H-1B lottery.
The most heavily affected are those candidates who are outside of the United States and going through National Visa Center processing for an immigrant visa. Nationals of those four countries are no longer able to seek immigrant visas through U.S. embassies and consulates abroad, regardless of the location of the post. If you have candidates who are currently part of the offshore immigrant visa process, you need to inform the candidate as soon as you can that their case may continue to be processed, but that their case will be placed into administrative processing or outright denied if this ban remains in effect.
Dual citizens are unaffected so long as they seek an immigrant visa on their non-affected passport.
This set of restrictions will affect your employees’ family members who are not in the United States and seeking to immigrate under the follow to join rules. Permanent resident or U.S. citizen employees who are attempting to bring their family members—spouses, parents, siblings, and the like—are now unable to bring them here on an immigrant visa if the family member is a national of one of those four countries. H-1B or L-1A/L-1B employees may still bring their spouses and Under-21-Children on H-4/L-2 visas.
If you have specific cases, please contact your HLG atty. to discuss.

Trump Immigration Policy Cheered in Toronto !

With the denial rate of H-1b visas in the mid 30% over the past 2 quarters and inching closer to 40%, ever wonder where all of those talented engineers and computer professionals are going ? Looks like they are landing nicely in Canada. Check out this latest article from NPR.

February Visa Bulletin

The Department of State (DOS) has recently released the February Visa Bulletin and there is very little forward movement in the Final Action Dates chart. Several categories remained the same and India EB2 jumped forward by 1 single day ! As expected, the Dates for Filing Chart stayed the same. The DOS issued a warning indicating that they expect retrogression in the “rest of the World” EB3 category as early as March. The USCIS has announced which 485 applications they will accept in Feb and they are using a combination of the dates for filing and final action charts depending upon your country of chargeability. Check the language carefully to understand how it may impact you.

By |January 23rd, 2020|Green Cards|0 Comments|

January Visa Bulletin

The Department of State (DOS) has released the January 2020 Visa Bulletin and there is a lot of activity. Most notably, in the Dates for Filing chart, EB3 for the Philippines and all other countries retrogressed to Jan 1, 2019. In the Final Action chart, EB1 for the all other countries jumped forward 4 mos. but, all other categories remained essentially the same with forward movement ranging from 3 days to 2 weeks. The USCIS has announced that they will accept I-485 filings in January based upon the Dates for Filing chart. Also, included in the Visa Bulletin were projections for coming months and there was a lot of bad news with the prediction that EB3 for all other countries is expected to retrogress by March and EB2 may retrogress as early as April.

By |December 30th, 2019|Green Cards|0 Comments|

H-1b Cap Lottery Update

Save the time and date, HLG will be hosting a free conference call for all clients on Tues. Jan 14th at 2:30 pm eastern to provide information about the new electronic registration system that will be used for this year’s cap/lottery.

S. 386 On Hold

Late last week, it was announced by the Senate that S. 386 is on hold and will not be brought up for consideration because it was assured to fail. Whether it will be revived before the fall 2020 election remains to be seen but, it is doubtful. It remains disturbing that Senator Durbin continues to allege that there are widespread abuses in the H-1b program. If there is major abuse in the program now, it is the USCIS that are the perpetrators. With a denial rate that has soared to 35% with no changes in the law, who is most apt to be ignoring the law and abusing the program ?

S. 386 Moves Forward

Late last night, Senators Lee and Durbin made other members of the Judiciary Committee aware that they had worked out a compromise on S. 386 and many of the provisions appear to be very positive however, they have included a 50-50 provision which many believe is a poison pill. The 50-50 provision would prohibit any company with more than 50 employees with a workforce made up of more than 50% H-1 and/or L-1 holders from being issued any new visas. Although at first glance, it would appear that this provision only targets larger dependent H-1b users, a more thoughtful analysis reveals that this would be a significant victory for companies wishing to off-shore IT projects. It is undeniable that the IT talent pool in the US is small. IT unemployment is almost non-existent, hence the use of H-1b tech workers. If the larger Indian IT houses are prevented from brining new tech talent into the US, where are US cos. going to get needed talent ? Many U.S. employers hire H-1b workers, not from off-shore directly, but, away from the large Indian IT houses using H-1b transfers. Which is more likely; US students are going to flock to computer science programs to immediately fill the need for software developers or that IT development project is going to be outsourced to India to where the talent is already in place ? Often what looks good on paper, has unintended consequences.

Great News !

The USCIS announced that the H-1b cap/lottery will be conducted via electronic registration in 2020 ! The initial registration period will be from March 1st through March 20th ! As announced earlier this month, the filing fee will only be $10.00 per registration. This is exciting news and will save a tremendous amount of time and money for US employers (and law firms). More details will be provided as they become available and we expect to do a free teleconference for our clients in mid January.

December Visa Bulletin

Recently the Department of State (DOS) released the December Visa Bulletin and it brought no holiday gifts. All of the dates in the “Dates for Filing” chart remained unchanged whereas dates in the “Final Action Dates” chart stayed the same or barely crept forward. For example, of the 4 categories for Indian nationals, the India EB2 category is the only one that moved forward and it moved forward by a whopping 2 days 🙁 On the good news front, the USCIS has announced that it will accept I-485 filings in Dec using the “Dates for Filing” chart consequently, we are recommending that all persons eligible to file I-485’s in December, do so.

In a sign of dark clouds looming on the horizon, the DOS predicted that retrogression in the “All other countries” categories for EB2 and EB3 is imminent and cut-off dates could occur as soon as January. Typically, this does not occur until near the end of the fiscal year i.e. Aug or Sept. Retrogression remains a major problem for legal immigrants and only a legislative solution can solve the issue. With the current political climate, no relief is expected.

By |December 2nd, 2019|Green Cards|0 Comments|