Government Agency Actions – USCIS, ICE, etc.

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.

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.

Proposed Fee Increases………. Plus More

In a recent proposed rule, the USCIS has proposed changes to filing fees for most immigration benefits. Some filings would actually go down eg. the I-140 would go from $700.00 to $545.00 and the biometric charges would be reduced from $85.00 to $30.00 however, most filing fees would increase. For example, the H-1b visa petition fee would increase from $460.00 to $560.00 and an L-1 petition would go from $460.00 to $815.00. Other significant changes proposed include the lengthening of the time the USCIS has to process a premium processing case from 15 calendar days to 15 business days. Also, in an effort that targets certain dependent employers, those with more than 50 employees who have more than 50% of their workforce made up on H-1b and/or L-1 workers, would be required to pay an additional $4,000(H-1) or $4500(L-1) fee, respectively, for extensions. At present, the additional fee is only imposed on new petitions. Given the current practice of the USCIS to illegally shorten approval notices for staffing/consulting cos. this would be a rather severe result. Comments on the proposed rule are due on Dec 16, 2019.

Premium Filing Fee to Increase

In a move designed to offset the tremendous amount of paper costs associated with issuing 1200 page RFE’s on H-1b cases, the USCIS has announced that they will be raising the premium processing fees on I-129 and I-140 petitions to $1440.00 effective Dec 2nd. With this increased fee, they promise to continue to overlook the evidence presented, bastardize the regulations, ignore decisions from Federal Courts and the AAO; business as usual !

H-1b Fraud

Yes, H-1b fraud is real; less prevalent than the White House would have you believe but, more prevalent than many in the industry want to admit. As a recent CEO discovered, fraudulent acts can lead you to prison. Check out the story of this CEO who was recently sentenced to 7 years behind bars.

USCIS Delivers ! and Then is Stopped :)

The USCIS has released the new forms that seek information to comply with the new public charge rule.  Refer to Part 6 of the I-129 form here.  The new forms must be used for all filings as of Oct 15, 2019. It’s amazing how quickly the USCIS delivered with the threat of another Federal Judge chiding them and telling them to “get your act together” !

Update as of 10-11-2019, multiple Federal Courts have blocked the implementation of the Public Charge rule and the enw forms.

Deadline for New Forms Looms !

The Public Charge rule goes into effect on Oct 15, 2019 and most in the business immigration arena expected to feel little to no effect however, the USCIS has yet to publish the new forms to be used and as a result, cases that use the I-129 (H,L,O, etc); I-539 (dependents); and, the I-485 (permanent residency) can not be filed after Fri Oct 11th (Mon. Oct 14th is a Federal Holiday) . The USCIS web-site has posted the following “On Aug. 14, 2019, DHS published a final rule on the public charge ground of inadmissibility (see section 212(a)(4) of the Immigration and Nationality Act). The final rule becomes effective Oct. 15, 2019. What to Know About Sending Us Your Form The current edition of the form, dated 1/31/2019 •We will accept the current edition of this form if it is postmarked on or before Oct. 14. •We will not accept it if it is postmarked on or after Oct. 15. The updated edition of the form On or after Oct. 15, we will accept only an updated edition that will be linked to this page. “

Yesterday, the American Immigration Lawyers Association (AILA) filed a federal lawsuit seeking to enjoin the USCIS from refusing to accept the current forms until they have released the new forms. More updates to follow.  

USCIS Admits Orders from the WH to Deny H-1b Visas

In an admission that surprises no one, documents which the USCIS was forced to release under FOIA litigation confirms that the USCIS was ordered by the Trump Administration to increase the denials of H-1b visas  and were advised that no legal or regulatory authority was needed to support the denials. The full story is published in Forbes with links to the incriminating documents. These documents are expected to be at the front and center of all federal litigation brought by U.S. employers seeking to overturn arbitrary and capricious denials. It is also expected that charges of bad faith will be brought.

Social Security Number No-Match Letters Return

This spring, the Social Security Administration (“SSA”) has begun sending “Employment Correction Request Notices,” or no-match letters, to all employers with at least one W-2 form in which an employee’s name and Social Security number (“SSN”) does not match their records. Employers who receive such letters should not use the letters as reason to take adverse employment actions against their employees. In fact, such action may violate the anti-discrimination provision of the Immigration and Nationality Act, which prohibits discrimination on the basis of national origin, citizenship status or immigration status, document abuse during the employment eligibility verification process, and retaliation. Instead, employers should inform the employee of the no-match, verify the accuracy of their personnel records, and give the employee a reasonable time to contact the SSA office and correct the error.

 

For a complete list of steps employers should take upon receiving a no-match letter and information on how to avoid no-match letters, please see this month’s copy of the HLG Advocate.

 

If you have questions regarding this matter, please contact your HLG attorney or Rebecca M. Baibak, Esq. at rebecca.baibak@hammondlawgroup.com.

New H-1b Data Hub

As employers began filing H-1b lottery cases for FY 2020 last week, the USCIS launched the H-1b Data Hub, designed to provide the public information regarding employer filings including approval and denial rates. It is hoped that the accuracy of the data improves quickly. A survey of 10 of our client’s records revealed gross mis-reporting of the number of filings, number of approvals, number of denials, and NAICS codes. The data hub is a great idea but, without accurate data, one may as well be getting your news from Facebook memes !