Visas – H-1b, L-1, E, O, TN

USCIS updates date that premium processing of H-1b cap cases will begin

USCIS recently announced that it received 233,000 cap-subject H-1b petitions for the 2016 fiscal year. Initially, it stated that it would begin adjudicating cases that were filed through the premium processing service on May 11th, 2015. However, USCIS has updated this date to April 27th, 2015. The delay in reviewing these cases that were submitted through premium processing is due to the historic premium processing receipt requests.

233,000 :(

The USCIS today announced that it had received approx. 233,000 H-1b cap subject petitions to be included in the lottery for 85,000 visas. They further announced that the lottery had been completed. They did not indicate when receipts would be issued but, did remind everyone that they expected to begin processing premium process filed cases by May 11th. Whether this the volume of cases filed will spur Congress to act on legal immigration is unknown but, I’m not holding my breath.

AAO changes the game for staffing employers !

In a decision released last week, the AAO declared that a work-site location change outside of the original MSA requires the filing of an amended H-1b petition. This change will have significant impact on staffing cos., many whom have followed DOL and USCIS HQ guidance which supported the conclusion that only the filing and posting of a new LCA was required when an employee’s work site changed. The I-129 form itself declares that an amended petition is not required when changing the location of an H-1b employee if you have filed and posted an LCA at the new work-site prior to the move. It is not known whether USCIS HQ supports this AAO decision or will issue further clarifying guidance to essentially overturn this decision. In the meantime, this decision leaves employers in an era of uncertainty. HLG will be hosting a teleconference for clients on Fri. April 17th to discuss this topic. More details will be released early this week.

USCIS Shocker !

In a surprise to absolutely no one, the USCIS today announced that it had received petitions in excess of the 20,000 H-1b U.S. Masters cap and the 65,000 regular H-1b cap and a lottery would be held. They did not disclose the total number of petitions received and they did not disclose when the lottery would be held. Receipts will not be issued until after the lottery is held. We will provide further updates as they become available.

H-1b Report Released

On the first day of cap filing season, the American Immigration Council released a report detailing the economic impact of H-1b employees. Interesting study containing facts. Maybe someone can pass a copy of this along to Senator Grassley.

H-1b Cap Day !

Today is the 1st day that the USCIS will accept H-1b cap cases for FY 2016. The USCIS is expecting over 200,000 cases will be received in the first 5 business days of April. All of these cases will be entered into a lottery from which 85,000 lucky petitions will be chosen and processed. The USCIS will post updates on the number of petitions received, when the lottery will be held, when receipt notices will be issued and when premium processing will start. We will also update you as developments occur.

Denied a Visa because of the color of your skin ?

It seems like an absurd headline doesn’t it ? We are in 2015 in what we claim is one of the most enlightened countries in the world and this current administration certainly talks a good game about equality, transparency and fair treatment for all. The reality is far different at the USCIS. In a not so surprising discovery, the National Foundation for American Policy, released a report that disclosed that if you happen to be an Indian national that your odds of being denied an L-1 visa are 5 times greater than if you were from another country. From 2012-2014, the USCIS denied an astounding 56% of L-1b petitions for persons from India. Is there an explanation other than blatant discrimination ? Sure there is but, not a credible one. USCIS examiners at the urging of powerful political interests have linked outsourcing (which is the devil incarnate) to the L-1b visa and USCIS examiners have been doing their “patriotic duty” by denying as many L-1b visas as they can. The legal standard and meritorious nature of the case be damned. The economic impact to US business is irrelevant. The argument that denials actually eliminate US jobs and force greater outsourcing, often forcing US citizens and residents to be transferred overseas falls on deaf ears. When you don’t want to hear that a certain class of person should be treated fairly, there is no reason to listen. Deny! Deny! Deny! is the rally cry in the halls of the Vermont and California Service Centers ! In 2006, the denial rate for L-1b petitions was 6%; in 2014, it was 35% without a single regulatory or statutory change. It’s time to call it what it is ! Disparate treatment of one petition over another simply by virtue of one’s national origin.

End of the 3-for-1 Rule?

The “3-for-1 Rule” states that three years of work experience is equal to one year of education in the H-1B context. This rule has been followed for years without question but now the rule might not be as straightforward as it used to be. The Rule was routinely applied to cases where a beneficiary had only completed part of a bachelor’s degree program and was using years of experience to cover the remaining years. After the AAO’s recent decision, the rule should no longer be considered an uncomplicated 3:1 ratio. While this a non-precedential decision, the results could have far reaching effects, especially on how RFE’s are issued and responded to.

The AAO begins by stating that the 3-for-1 rule has been misapplied and is exclusively reserved for use by USCIS agency-determinations of educational equivalency. This means that going forward, technically the Service is the only one that can apply the rule.

Next, the AAO points out that not all years of experience are equal. The requirements for RFE’s are about to become very high. Petitioner’s will be required to “clearly demonstrated” that a beneficiary’s years of experience include the theoretical and practical application of specialized knowledge required by the specialty occupation, that it was gained while working with peers, supervisors, or subordinates who have a degree or its equivalent in the specialty occupation and that the alien has recognition of expertise in the specialty. In short, letters of experience will now need to be very detailed and contain specific elements.

However, you also need to show that the beneficiary has expertise in the specialty. This is most easily demonstrated by recognition of expertise in the specialty occupation by at least two recognized authorities in the same specialty occupation. This will result in letters from experts becoming a requirement if you would like experience considered. The decision also outlined who can be considered an “expert” for these letters. Remember, even if you obtain great letters USCIS can still determine that those years don’t equal a year of baccalaureate experience.
Finally, the AAO found that only reliable credentials evaluation services that specializes in evaluating foreign education credentials can evaluate a foreign national’s education. So, the submission to the USCIS must now include an evaluation from a foreign credentials evaluation service, expert letters can only be used to show recognition of expertise not educational equivalency.

In sum, the 3 for 1 rule should not be considered the simple 3:1 ratio it has been in the past. Going forward, proving that a beneficiary meets the H-1B educational requirements through years of experience is a completely new animal.

Senator Hatch calls out Senator Grassley

Last week, Computerworld published comments from Senator Hatch in which he essentially called out Senator Grassley for being a protectionist and simply ignoring the economic realties of the global marketplace that exists in 2015 by virtue of his plan to prevent an increase in the H-1b cap without including unnecessary and onerous requirements. The proposals of Senator Grassley, though seemingly reasonable on the surface, would essentially destroy the H-1b visa particularly for IT staffing companies who are a large user of the H-1b program. Given Senator Grassley’s history of attacks on the staffing industry, his position should not be a surprise. It is refreshing to see Senator Hatch take a pro business and pro American position however, given Senator Grassley’s position as the chair of the Senate Judiciary Committee, he may have sufficient power to single-handedly prevent business immigration reform from happening. It should be noted that both Senators are Republicans and senior members of the Senate so this type of public exchange is a bit unusual. The back drop of this discussion is the upcoming April 1st H-1b cap lottery filing deadline at which, literally 1000’s of professionals, many of them with U.S. graduate degrees, hired by U.S. employers, will be rejected and told that their services are not wanted in the U.S. Last year, over 85,000 professional workers were rejected and many think this year, there will be even more. The 85,000 rejected workers would’ve been tax-paying productive workers and as countless economic studies have shown, H-1b workers serve to create U.S. jobs, not eliminate them. The continued insistence by politicians such as Senator Grassley, on building walls, rather than building the American economy remains troubling. The foreign outsourcing industry is grateful for his efforts though.

H-4 EAD Rule Released

At long last, the DHS has published the final rule (regulation) allowing certain H-4 holders to apply for an EAD card. Eligibility requires the H-4 holder’s spouse to have an approved I-140 or to have already been approved for a 7th year extension under the AC21 rules. The rule goes into effect on May 26, 2015. Applications may not be filed early.