Visas – H-1b, L-1, E, O, TN

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.

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.