Visas – H-1b, L-1, E, O, TN

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.

H-1b Reform What’s next ? Anything ?

As the H-1b industry has absorbed the impact of the Executive Orders issued over the past month, questions arise as to what is next ? As most experts agree, EO’s have limited impact on the H-1b outside of a chilling effect on employers and workers alike, and though this should not be diminished as insignificant, big changes that may last for decades can only come through legislative change. A nice summary of where we stand at present and what might be coming was published in Computerworld last week. Check it out here.

Buy American and Hire American

Yesterday, President Trump issued an Executive Order impacting business immigration specifically, the H-1b visa. The order makes NO immediate changes to the H-1b program but, changes they are a coming. The EO essentially makes two (2) directives. First, it orders all agencies that touch the H-1b program to review all of its policies and regulations and write new policies and regulations to further protect US workers and prevent fraud and abuse in the H-1b program. Long-term, this may result in new proposed regulations which will be the subject of notice and comment. In the next few months, this may mean more policy memos, such as the memo released in late March which changed 20 years of policy and declared that many computer programmer positions would no longer be considered H-1b level occupations. As we saw with the introduction of the Neufeld policy memo in 2010, policy memos can have a major impact on a visa category. Immediately, I think we will see an increase in H-1b site visits; DOL LCA audits; 221(g) and administrative processing by US Consulates at visa stamping; RFE’s; use of the NOID in place of the RFE; NOIR issuances; and, denials. The President is proclaiming that H-1b visas harm US workers and there is rampant fraud and abuse and by his comments and this EO, he is directing his administration to do everything in its power to right this wrong. If we thought the “culture of NO” which was pervasive during the last Administration was strong, we now expect to see the “culture of HELL NO”
Secondly, the EO requests that the agencies involved devise a new scheme to replace the H-1b lottery and award the limited pool of H-1b visas to the “most-skilled or highest paid”. The assumption being made in this EO is that the majority of H-1b visas are awarded to low paid workers. New grads from US schools make up at least 20,000 of the H-1b lottery pool and by many estimates, at least a 3rd of the lottery winners and new grads are appropriately paid at the low end of the wage scale. There are a number of problems inherent in any scheme that awards H-1b visas only to the highest paid eg. rural areas will be at a major disadvantage over large cities; some occupations such as healthcare and research will not be able to compete with even the low end salaries paid to IT and engineers; and, large companies will have an advantage over start-ups.

Contrary to the “Buy American” provisions in this EO, there were no timetables set for the immigration related provisions.

The reaction to the President’s EO came quickly with most declaring this is nothing more than chest thumping and a horrible solution in search of a problem. One prominent immigration attorney quoted MacBeth (surely you know the line) and I must admit I responded to an email yesterday about this subject by sending back a pic of a person blowing hot air however, as I outlined above, this will have ramifications. There is no question that we need immigration reform but, it needs to be legislative in origin and needs to be based upon facts and not mere anecdotes tainted by either fear or hatred of immigrants.

199,000 H-1b cap filings

Today, the USCIS announced that it had received 199,000 H-1b cap subject petitions and that it has completed the random lottery. We expect to start seeing receipts over the next few weeks and rejected cases to start arriving within the month. At this point, we do not have an estimate as to how long it will take to obtain all receipts and/or rejections but, last year, all were not processed until July.

H-1b cap reached and lottery to be held !

In news that is not really news but, expected by everyone, the USCIS announced on Friday, that they had received sufficient filings to exceed the H-1b cap for FY 2018 and a lottery will be held to determine which petitions will be processed.

Employers Seeking H-1B Visas Should Not Discriminate Against US Workers Warns the U.S. Department of Justice

Yesterday, April 3rd was the first day the USCIS began accepting H-1B visa petitions that are subject to the cap for the next fiscal year (October 1, 2017 to September 30, 2018). The H-1B visa allows U.S. employers to employ temporarily foreign workers in specialty occupations including science and technology. The anti-discrimination provisions of the Immigration and Nationality Act (INA) prohibit employers from discriminating against U.S. workers because of their citizenship or national origin. This prohibition applies to hiring, firing and recruiting or recruiting for a fee. An employer may be found to have violated the INA’s anti-discriminatory prohibitions if they favor H-1B visa holders over U.S. workers. “The Justice Department will not tolerate employers misusing the H-1B visa process to discriminate against U.S. workers,” said Acting Assistant Attorney General Tom Wheeler of the Civil Rights Division. “U.S. workers should not be placed in a disfavored status, and the department is wholeheartedly committed to investigating and vigorously prosecuting these claims.” The Immigrant and Employee Rights Section of the division (formerly the Office of Special Counsel for Immigration-Related Unfair Employment Practices) is responsible for prosecuting violations under these provisions which include citizenship, immigration status and national original discrimination in hiring, firing, recruitment or recruitment for a fee; unfair documentary practices; retaliation; and intimidation. Please contact Hammond Law Group if you have any questions about what may or may not be considered a violation of the INA’s anti-discrimination provisions.

USCIS issues new memo on Computer Programmers and H-1b qualification

On Fri., USCIS HQ issued a new memo rescinding a 2000 memorandum and reminding employers that the occupation of “computer programmer” particularly level 1 positions may not meet the H-1b standards. The memo remarked that the basis of the 2000 memo i.e. the DOL’s OOH Handbook and the industry itself has changed considerably in the past 16 years and that simply designating a position as a “computer programmer” is not sufficient alone to meet the H-1b standards. This new memo is NOT a change in the law but, it is expected that examiners at the SC’s will utilize this memo in support of denials for petitions filed using this designation particularly, any that used a level 1 wage.