At a time when the USCIS processing times for H-1 petitions and extensions have grown to over 10 months, the USCIS has decided to reward themselves with an increase in revenue on the backs of US employers and international workers. Today, the USCIS released a proposed schedule of fee increases. Pursuant to the APA, the public is afforded 60 days to submit comments. Our firm plans on submitting comments on behalf of our clients. Of the most commonly used filings by US employers, the I-129 base fee will be increased from $325 to $460; the I-140 from $580 to $700; and, the I-485 from $985 to $1140. The last filing fee increases for the base petitions occurred in 2010. The USCIS claims that the fee increases are necessary to provide service to its customers. What a sad statement.
The U.S. Citizenship and Immigration Services (USCIS) issued a policy memorandum, adopting an Administrative Appeals Office (AAO) decision, to provide guidance that applies to and binds all USCIS employees regarding the adjudication of L-1A visa petitions. Specifically, the memorandum clarifies that when determining whether the beneficiary of an L-1A visa petition will primarily manage an essential function, USICS officers must weight all relevant factors including evidence of the beneficiary’s role within the larger qualifying international organization. The guidance clarifies a 2013 decision of the appeals office, Matter of Z-A- Inc., which overturned a Director’s decision denying an extension to stay for an L-1A beneficiary who was serving as a Vice President and Chief Operating Officer of a large Japanese manufacturer. In the overturned decision, the Director had determined that the officer wasn’t employed in a managerial capacity because U.S. operations did not have an “organizational structure” large enough to ensure the executive would not be performing the day to day sales duties. The decision failed to take into account the eight foreign staff located in Japan who worked under the manager, who performed the day to day sales duties necessary. The Japanese parent company is a publicly trade firm with over $900 million in sales.
In overturning the decision, the AAO found that the beneficiary’s responsibilities did primarily consist of managerial duties and that the beneficiary served as a member of the senior management team. The AAO found that the Director erred in focusing on the number of employees without looking at preponderance of the evidence presented which included evidence that the foreign staff performed many of the day to day sales duties required and thus, although the beneficiary may be required to perform some administrative or operational tasks, he primarily manages an essential function of the Petitioner. The case is Matter of Z-A- Inc. –
The USCIS announced that it received 236,000 H-1b cap petitions filed for the 85,000 spots available. They have completed the lottery process and have started to issue receipts. Last year, it took almost 4 weeks for all receipts to be issued. Premium processing cases will begin to be processed on May 16, 2016.
In news that surprised no one, the USCIS announced today that it had received a sufficient number of filings to reach both the 20,000 U.S. masters quota and the 65,000 regular quota thus requiring that a lottery will be held. They went on to state that they did not know when the lottery would be conducted due to the large number of filings received. Stay tuned for further updates.
Today, April 1st, marks the first day that H-1b cap petitions can be filed seeking a new H-1b visa from the FY 2017 quota. The quota is set at 85,000 total with 20,000 being set-aside for persons with US masters degrees or higher. All H-1b petitions must be filed by a US employer and the pay offered must meet the prevailing wage established by the DOL. All individuals who have filings done for them must have at least a bachelor’s level education. The majority of filings are for STEM positions. As a result of demand exceeding supply, the USCIS has created a lottery system and all filings received in the first 5 business days of April will be included in a random drawing for the coveted visas. The lottery is typically held the 3rd week of April and those petitions lucky enough to be chosen are then processed. Those cases not selected in the lottery are returned to the employers who filed them. Last year, over 220,000 petitions were submitted. Many are expecting over 250,000 this year. The fact that the US immigration policy allows for the selection of highly skilled workers, most filling STEM related, hard to fill positions, by random chance is absurd. Unfortunately, the anti-immigration far right led by Grassley, Cruz, and Sessions have thwarted any attempts to reform the legal immigration system into a system that does a better job of selecting international workers while still protecting US jobs. It is as if they actually are in favor of the status quo i.e. dysfunction as it gives them something to beat their chest about. The rhetoric coming from the Presidential race indicates that we will be left with the lottery for some time.
Customs and Border Protection has stated that they will only accept educational equivalencies prepared by members of the National Association of Credential Evaluation Services (NACES.ORG) for cases presented at the Preflight Inspection or Port of Entry. A review of their website indicates that only 19 educational evaluation services providers are listed including the Foundation for International Services, Inc. and World Education Services, Inc. But other equally reliable service providers are not. Membership to NACES is by application and requires completion of a rigorous screening and selection procedure, which includes a two-member on-site visit at the applicant’s expense.
On January 13, U.S. District Judge Stephen V. Wilson refused, Chain-Sys Corp.’s, a Michigan technology company, motion for summary judgment accusing U.S. Citizenship and Immigration Services officials of improperly denying an L-1B visa for a programmer from India, saying the agency had a reasonable foundation for its decision. Chain-Sys, which creates software applications, most notably for software giant Oracle Corp., had sought an L-1B visa for its employee, Anbarasan Murugan, a senior project manager and technical specialist at Chain-Sys who had worked for the company in India for eight years. Chain-Sys has been arguing two points. First, the agency was wrong to determine both that Murugan’s knowledge of the company’s proprietary software was not itself specialized knowledge; and second that Chain-Sys hadn’t shown that others employed in the industry couldn’t easily acquire Murugan’s knowledge.
As to the first argument, the judge noted that the fact that a person works with proprietary information or has a high level of technical skill is not enough to establish specialized knowledge under the USCIS’ interpretation of federal immigration law. As to the second argument, the judge said he couldn’t conclude that USCIS “was compelled to find that it would take years to impart Murugan’s knowledge alone on another individual already in the industry.” In general, it is safe to assume that your company’s propriety technology is not commonly held, is complex and is difficult to impart to others. However, this decision shows that when petitioning for an L-1B employee it is still best to demonstrate as many as the factors that show specialized knowledge as possible, even though the presence of one or more of these (or similar) factors is sufficient in some cases to establish that a beneficiary has specialized knowledge.
The Consolidated Appropriations Act, 2016 (Public Law 114-113) was signed into law on December 18, 2015 and increased the fee for certain H-1B and L-1 petitioners. USCIS issued a web alert today that the additional fee now applies when a petitioner employs 50 or more individuals in the United States, with more than 50% of those employees currently in H-1B or L (including L-1A and L-1B) nonimmigrant status.
The additional fee must be included (1) with new petitions seeking H or L status or (2) when the petitioner seeks to have the nonimmigrant in H or L status change employers.
This is a departure from what the previously published regulations on the topic indicated, which also required the additional fee for extensions of H or L status. As things stand today, these are the only types of petitions that requires the additional fee but based on the back and forth that has surrounded this rule’s roll out, we will not know for sure until USCIS revises its instructions for the Form I-129.
The DHS has released the long anticipated proposed regulation which promised to provide greater portability to H-1b workers with approved I-140’s. A copy of the complete rule can be found here. Comments on the proposed rule are due on Feb 29, 2016 and the rule is not in effect until it becomes final, sometime after the comment period. Our office will be providing a detailed summary to clients next week. I hate to throw cold water on what should be a day of celebration but, a quick read through does not indicate that the portability provisions are as gracious as promised. There are however, other really good provisions which will be very positive for international professional workers and their employers. Happy New year and we wish everyone a great 2016.