Visas – H-1b, L-1, E, O, TN

H-1b Denials Increase

It is being widely reported that the number of H-1b denials has increased dramatically during the past 3 months as the Trump edict to limit legal immigration has taken root. Recently the New York Times ran a sobering op-ed piece on this subject.

H-1b Dependent Bill Moves

The Issa sponsored bill HR 170 which changes the rules that dependent employers must follow in order to employ H-1b workers has passed out of Committee and will now go to the full House floor. We will be reviewing the full text and providing further updates as soon as possible. Although the prospects of any immigration legislation passing out of this Congress is dim, we are still carefully monitoring the movement of any legislation.

Premium Processing returns for all H-1b petitions

Today, the USCIS has announced that the Premium Processing option is once again available for all H-1b petitions. The filing fee remains $1225.00. If you have a pending H-1b petition and would like to have your case converted to premium processing, please contact your assigned attorney or paralegal who can assist.

L-1b Site Visits

L-1b site visits are nothing new however, a number of sources are now reporting that L-1b site visits are occurring as part of the adjudicatory process of a petition seeking an extension or an amendment. The Service is essentially conducting an evidentiary fact finding mission prior to issuing a decision. The problem with this approach is that there is no context, no safeguards, and no assurances that negative information will be disclosed to the petitioner thereby providing an opportunity for rebuttal or challenge. The concept of due process and a fair review of the evidence in light of existing law seems to be too often a forgotten concept in immigration adjudications. When asked for comment, a USCIS representative stated, “We may do investigations at any point, And going further into detail could compromise our tactics in maintaining the integrity of our immigration system.” So much for transparency and fairness.

30-60 day fraud rule changed

Earlier this month, the Department of State issued new rules regarding misrepresentations upon entry and changed the former 30-60 day rule to a clear 90 day rule. The new rule states in part, “if an alien violates or engages in conduct inconsistent with his or her nonimmigrant status within 90 days of entry, as described in subparagraph (2)(b) below, you may presume that the applicant’s representations about engaging in only status-compliant activity were willful misrepresentations of his or her intention in seeking a visa or entry.”
The concept in question, most typically, applies to a situation where a person enters on a non-immigrant visa but, then chooses to file an immigrant petition i.e. permanent residency. There are however, other circumstances where the rule may apply, such as entering on a B visa and then seeking a change of status to an employment category. We do not believe that the rule extends to situations where a person enters on an H-1b for one employer and then files for a transfer petition to another employer. Due to the fact-sensitive nature of the application of the rule and the significant consequences from a finding of misrepresentation, it is recommended that you seek counsel before making any change within 90 days of an admission.

Premium Processing resumes for H-1b cap cases

Today, the USCIS announced that premium processing will resume immediately for all H-1b FY 2018 cap cases. If you have a pending cap case with HLG and want to upgrade to premium processing, please contact your HLG attorney or paralegal.

It’s not you, it’s everyone ! H-1b RFE’s

As we all lament the increasing number and stupidity of the H-1b RFE’s we are seeing, it’s nice to know we are not alone. That old phrase of misery loves company comes to mind ! Check out this excellent blog post from one of my favorite AILA attorneys. (Yes, I am jealous that she can dye her hair and I can’t !)

SCOTUS partially re-instates the Trump Muslim Travel Ban

Today, the U.S. Supreme Court issued a ruling which in effect did, 3 things: granted the Trump administration request for a full hearing which will be held in October; overturned the travel ban for those persons with no bona fide relationship with a US person or entity; and, upheld the injunction on the remaining parts of the ban. As a practical matter, this should mean that persons, from the affected countries, with existing work visas and/or advance parole cards should be able to freely travel consistent with the conditions of those already issued documents however, given the discretionary power given to CBP officials, we recommend that you carefully consider whether traveling is in fact, necessary and prior to undertaking any travel, consult with your immigration attorney to be prepared. The American Immigration Lawyers Association (AILA) has issued a press release on the ruling.

Do I (Still) Qualify for the H1B Master Cap?

On May 31, 2017, USCIS released a memo clarifying that to be eligible for an H-1B cap exemption based on a Master’s Degree, the school from where the beneficiary obtained their degree has to have been a U.S. “institution of higher education” when the degree was earned. The policy memo cites to Matter of A-T- Inc., an “adopted decision,” meaning the decision is binding policy guidance for all USCIS personnel.

As you probably know, there are only 65,000 H-1B visas available under the cap each year, with an additional 20,000 for people who have earned a master’s degree or higher in the U.S. In their decision, the Administrative Appeals Office (AAO) stated, “[U]nder our interpretation, an individual who earns a degree from a (pre-)accredited institution may continue to qualify for the Master’s Cap exemption even if the institution later closes or loses its (pre-)accreditation status.”

This will be an important memo to keep in mind as USCIS has, in some instances, gone back and reviewed a beneficiary’s initial H1B petition – and which cap they were counted under – while adjudicating a current extension. Even when the beneficiary has been in the U.S. for over 5 years.

USCIS to begin returning rejected H-1b lottery cases

The USCIS has announced that it has completed the data entry of all H-1b cap lottery cases and that rejected cases will begin to be returned next week. Receipts are expected to continue to trickle in over the next week. The USCIS did not provide an estimate for when all receipts or rejected cases would be sent out but, we expect it to be another 4- 6 weeks.