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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.

Trump Continues to Create a Boon for Tech in Canada !

Once again, the Buy American, Hire American (BAHA) policy of President Trump which has resulted in higher rates of denials for professional IT workers has had unintended (or maybe not) consequences which has resulted in IT jobs leaving the US and going to Canada. Check out this recent summary on Law 360.

TechServe Webinar

Senior partner, Mike Hammond will be a speaker at the TechServe Alliance webinar discussing H-1b visas. The webinar will focus on issues facing IT and Engineering staffing/solutions firms.

By |April 25th, 2019|Green Cards|0 Comments|

Can the Supreme Court Save Business Immigration ?

The Trump Administration has directly and without equivocation attacked legal immigration sending U.S. employers and legal international workers into a state of uncertainty. For a nice summary, check out this recent article. In what can only be described as an ironic twist, Trump appointees to the Supreme Court, Gorsuch and Kavanaugh may soon come to the aid of legal immigration. Both justices, as well as most conservative leaning justices, generally take positions that Federal agencies may not contravene legislative acts of Congress by regulatory actions. Further, they generally hold that Federal agencies may not bypass the Administrative Procedures Act and govern by sub-regulatory actions such as memos, web-site updates, tweets, and unwritten policies. All of the above accurately describe how the Trump Administration has chosen to attack and curtail legal immigration particularly in the realm of H-1b visas. For a description of how the Supreme Court may indirectly take up the issue of business immigration, check out this article.

Compete America Challenges USCIS

Earlier this month, Compete America issued a letter to the USCIS challenging the way the agency is handling H-1b petitions in a manner that is negatively impacting STEM jobs, U.S. graduates, and U.S. employers and the practical effect is to promote off-shoring and the outsourcing of U.S. jobs overseas. Read the full letter here.

Staffing firms targeted ……………. again !

New proposed DOL regulations have taken direct aim at the staffing industry in an effort to create a chilling effect in the marketplace and limit this industries ability to employ H-1b workers. The Trump administration’s initiatives can be aptly described as death by a thousand cuts ! Bloomberg did a nice summary of the proposed regulation and other changes the industry has seen in the past year. Public comments on the new proposed regulation are due June 25th. We will provide an update once the new regulation goes into effect.

Premium processing suspended for new H-1b Cap cases !

The USCIS has announced that is has suspended premium processing for H-1b cap cases to be filed April 1st. This move was expected and previously announced to clients during our H-1b conf. call in Feb. Premium processing remains for all other H-1b filings.

Sigh of Relief for Extensions beyond the 6th Year

I have been fielding a lot of question recently regarding the current administrations intentions regarding H-1B extensions beyond the 6th year. In the face of the uproar and uncertainty that was caused when the current administration let it be known that this was possibly on the chopping block, it now appears to be out of the cross-hairs. Detailed article from McClatchy.com here. We will continue to monitor the situation but for now everyone can let out a collective sigh of relief.

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.

Attacks on Trump’s EO

The attacks on Trump’s new EO are growing in number as people review what the EO is trying to achieve. An article in The Federalist is worth reading. Another article at SHRM.org discusses the limitations that the President has in making meaningful changes to the H-1b program without legislative action.