Visas – H-1b, L-1, E, O, TN

USCIS Scores Victory in Federal Court Over H-1b Company

We often hear about the victories that IT cos. have been scoring over the USCIS when litigating H-1b denials relative to specialty occupation, beneficiary qualifications, and employer-employee relationship issues; and, the wins are numerous. We rarely hear about the losses but, recently a Federal Court in Az. ruled against an IT company’s pursuit of a preliminary injunction over 18 denials. The Court ruled that the company had not proven irreparable harm in denying the motion. The lawsuit remains pending on the substantive issues. A full copy of the decision can be read here.

Travel Ban Explained

On Friday, January 31, 2020, President Trump issued a new set of travel restrictions for nationals of certain foreign countries. This is an expansion of the “travel ban” issued in 2017, as both draw their power from the Immigration and Nationality Act, Section 212(f).
The foreign nationals affected are those from Burma (Myanmar), Eritrea, Kyrgyzstan, and Nigeria.
This does not affect nationals of those countries if they are already present in the U.S. For example, if you have a Nigerian employee on H-1B, they may remain employed. You are also perfectly fine to start or continue a permanent residency case (PERM, I-140, I-485) via employment-based sponsorship.
Non-immigrant visas, such as H-1b, TN, L-1, O, etc are not impacted.
Students are also unaffected. For example, you may continue to employ a Kyrgyzstani student on Optional Practical Training. Nationals from affected countries are also permitted to extend or change status in the U.S.—they may apply for a STEM OPT extension, and/or you may place them into the H-1B lottery.
The most heavily affected are those candidates who are outside of the United States and going through National Visa Center processing for an immigrant visa. Nationals of those four countries are no longer able to seek immigrant visas through U.S. embassies and consulates abroad, regardless of the location of the post. If you have candidates who are currently part of the offshore immigrant visa process, you need to inform the candidate as soon as you can that their case may continue to be processed, but that their case will be placed into administrative processing or outright denied if this ban remains in effect.
Dual citizens are unaffected so long as they seek an immigrant visa on their non-affected passport.
This set of restrictions will affect your employees’ family members who are not in the United States and seeking to immigrate under the follow to join rules. Permanent resident or U.S. citizen employees who are attempting to bring their family members—spouses, parents, siblings, and the like—are now unable to bring them here on an immigrant visa if the family member is a national of one of those four countries. H-1B or L-1A/L-1B employees may still bring their spouses and Under-21-Children on H-4/L-2 visas.
If you have specific cases, please contact your HLG atty. to discuss.

Trump Immigration Policy Cheered in Toronto !

With the denial rate of H-1b visas in the mid 30% over the past 2 quarters and inching closer to 40%, ever wonder where all of those talented engineers and computer professionals are going ? Looks like they are landing nicely in Canada. Check out this latest article from NPR.

H-1b Cap Lottery Update

Save the time and date, HLG will be hosting a free conference call for all clients on Tues. Jan 14th at 2:30 pm eastern to provide information about the new electronic registration system that will be used for this year’s cap/lottery.

S. 386 On Hold

Late last week, it was announced by the Senate that S. 386 is on hold and will not be brought up for consideration because it was assured to fail. Whether it will be revived before the fall 2020 election remains to be seen but, it is doubtful. It remains disturbing that Senator Durbin continues to allege that there are widespread abuses in the H-1b program. If there is major abuse in the program now, it is the USCIS that are the perpetrators. With a denial rate that has soared to 35% with no changes in the law, who is most apt to be ignoring the law and abusing the program ?

S. 386 Moves Forward

Late last night, Senators Lee and Durbin made other members of the Judiciary Committee aware that they had worked out a compromise on S. 386 and many of the provisions appear to be very positive however, they have included a 50-50 provision which many believe is a poison pill. The 50-50 provision would prohibit any company with more than 50 employees with a workforce made up of more than 50% H-1 and/or L-1 holders from being issued any new visas. Although at first glance, it would appear that this provision only targets larger dependent H-1b users, a more thoughtful analysis reveals that this would be a significant victory for companies wishing to off-shore IT projects. It is undeniable that the IT talent pool in the US is small. IT unemployment is almost non-existent, hence the use of H-1b tech workers. If the larger Indian IT houses are prevented from brining new tech talent into the US, where are US cos. going to get needed talent ? Many U.S. employers hire H-1b workers, not from off-shore directly, but, away from the large Indian IT houses using H-1b transfers. Which is more likely; US students are going to flock to computer science programs to immediately fill the need for software developers or that IT development project is going to be outsourced to India to where the talent is already in place ? Often what looks good on paper, has unintended consequences.

Great News !

The USCIS announced that the H-1b cap/lottery will be conducted via electronic registration in 2020 ! The initial registration period will be from March 1st through March 20th ! As announced earlier this month, the filing fee will only be $10.00 per registration. This is exciting news and will save a tremendous amount of time and money for US employers (and law firms). More details will be provided as they become available and we expect to do a free teleconference for our clients in mid January.

Proposed Fee Increases………. Plus More

In a recent proposed rule, the USCIS has proposed changes to filing fees for most immigration benefits. Some filings would actually go down eg. the I-140 would go from $700.00 to $545.00 and the biometric charges would be reduced from $85.00 to $30.00 however, most filing fees would increase. For example, the H-1b visa petition fee would increase from $460.00 to $560.00 and an L-1 petition would go from $460.00 to $815.00. Other significant changes proposed include the lengthening of the time the USCIS has to process a premium processing case from 15 calendar days to 15 business days. Also, in an effort that targets certain dependent employers, those with more than 50 employees who have more than 50% of their workforce made up on H-1b and/or L-1 workers, would be required to pay an additional $4,000(H-1) or $4500(L-1) fee, respectively, for extensions. At present, the additional fee is only imposed on new petitions. Given the current practice of the USCIS to illegally shorten approval notices for staffing/consulting cos. this would be a rather severe result. Comments on the proposed rule are due on Dec 16, 2019.

Premium Filing Fee to Increase

In a move designed to offset the tremendous amount of paper costs associated with issuing 1200 page RFE’s on H-1b cases, the USCIS has announced that they will be raising the premium processing fees on I-129 and I-140 petitions to $1440.00 effective Dec 2nd. With this increased fee, they promise to continue to overlook the evidence presented, bastardize the regulations, ignore decisions from Federal Courts and the AAO; business as usual !

H-1b Abuse ?

Possible H-1b abuse by Uber ? Check out this report in the Mercury News. The report that they are filing for senior level software engineer positions at a level 2 OES wage appears to be a direct contravention of well-established DOL rules. Hopefully, after this practice has been brought to light, the company will take corrective action or if not, the DOL will investigate. For the legal immigration system to work well and not open itself up to extreme restrictions, U.S. employers must play by the rules.