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Presidential Proclamation RE: H-1B, H-2B, J-1, and L-1 Visas

As everyone is aware, late on June 22, the President issued a new proclamation suspending the entry for certain foreign nationals seeking to enter the U.S. on H-1B, H-2B, J-1, and L-1 visas (and applicable dependents such as H-4 and L-2). While we do not believe that this proclamation will have the intended effect of freeing up jobs for U.S. workers, we do believe that the effect will be limited to those in specific situations.

The Executive Proclamation applies only to those outside the U.S. on the effective date (12:01 am on June 24, 2020). Any foreign national currently in the U.S. will not be affected by this proclamation, either for current application or future extensions or visas at the U.S. consulate. We expect the main group that will be impacted is H-1B CAP cases filed as Consular cases. They will not be able to enter the U.S. until next year regardless of approval and visa period. H-1B CAP cases filed as a Change of Status in the US will not be affected.

Even if a person is outside the U.S, the Executive Proclamation applies only if the person does not already have a valid visa on the effective date or a valid travel document. Those with a visa stamping currently in their passport may continue to use it to enter the U.S. as normal. However, we caution to be prepared if traveling in the U.S. as there will be additional review by the officer to determine whether a person is exempt from the Proclamation.

The J-1 restriction is limited to only interns, trainees, teachers, au pairs and camp counselors; it does not restrict entry for researchers, physicians or any other J-1 category.

As a result of the is order, anyone who is affected by the Executive Proclamation will be unable to obtain a visa unless they meet one of the exceptions which includes:
(1) any lawful permanent resident of the United States;
(2) any person who is the spouse or child, as defined in the Immigration and Nationality Ac;
(3) any person seeking to enter the United States to provide temporary labor or services essential to the United States food supply chain; and
(4) any person whose entry would be in the national interest as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees.

It is worth reemphasizing that visas not listed, such as E-1, E-2, E-3, O-1, P, TN (Canadian and Mexican), are not included and entry on these visas can continue as normal. Furthermore, the filing and processing of U.S. permanent resident applications (Application to Adjust Status) have not been impacted by this Proclamation. USCIS and DOL may continue to process such applications.

If you have questions about a specific scenario not covered above, please contact your HNM attorney. Stay safe.

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H-1b Cap Lottery Update

The USCIS announced earlier this week that almost 275,000 registrations were submitted by U.S. employers for the 85,000 available lottery spots. This number was an increase of over 33% when compared to last years 201,000 filings. This increase is attributed to the new electronic registration process as well as the robust economy (remember that time only a few weeks ago). Of the 275,000 registrations 46% were for individuals with a US graduate degree.
The period for filing completed petitions opened on April 1 and will end on July 1, 2020. For individuals that need to take advantage of the cap-gap rules, the full 90 day filing window is not applicable and those petitions must be filed prior to the expiration of the OPT EAD.
Given the realities of COVID-19, and the number of lay-offs occurring, it is unlikely that all persons selected in the lottery will have petitions filed for them which will then open up the opportunity for those not originally selected to then be selected and possibly at a time when the economy is in a better state.

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Federal Court Victory for Staffing Firms

A Federal Court in DC has handed the USCIS a stinging defeat saying that its employer-employee definition and practice of issuing shortened approval notices is illegal. Congrats to attorney Jonathan Wasden for his fighting this battle. Read a copy of the decision here. If you have an H-1b petition that was illegally shortened by the USCIS, we may be able to obtain relief for you via this case. Please email me directly at mfh@hammondlawgroup.com We will work with Mr. Wasden to have your case added to this litigation, if appropriate.

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BALCA Clarifies How Employers May Use One Advertisement to Support Multiple Labor Certification Applications

In a recent case, the Board of Alien Labor Certification Appeals (“BALCA”) revealed the potential problems of using one advertisement to support multiple applications and how employers may avoid these potential issues. In Capgemini America Inc., 2013-PER-02219 (May 29, 2019) the employer submitted an Application for Permanent Employment Certification (“Form 9098”) for the position of “Computer Systems Analyst.” The employer’s recruitment materials for this application all advertised multiple “IT openings” and listed numerous job requirements, some of which were not listed on the Form 9098. BALCA affirmed the Certifying Officer’s denial, explaining what while employers may use a single advertisement to support multiple applications, the advertisement must make clear if some of the listed job duties apply to only certain positions. Since the advertisements in question did not clarify which of the listed job duties applied to only some positions, the advertisements failed to apprise U.S. workers of the job offered.

This case is thus a reminder that when using a single advertisement to support multiple applications with divergent job duties, employers must carefully draft their advertisements to specific when some of the listed job duties do not apply to all of the job openings.

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BALCA Clarifies How an Employer Can Satisfy its Obligation Regarding Possible On-the-Job Training

The Board of Alien Labor Certification Appeals (“BALCA”) recently suggested how an employer may demonstrate that on-the-job training is necessary for a position. In Microsoft Corp, 2014-PER-00615 (February 25, 2019) the employer rejected an applicant after an interview, finding the applicant was not sufficiently familiar with Scripting, C++, HTML, and Window as required. The Board affirmed the denial and held that the employer had failed to adequately document that the applicant could not qualify after a reasonable period of on-the-job training. BALCA stated that “more than a bare assertion is needed to prove that it is infeasible to train new workers within a reasonable period of on-the-job training.” The court then explained that an employer may demonstrate that on-the-job training is required in the following ways:

documentation from a vocational expert comparing the exact job requirements in the ETA Form 9089 to Applicant C.P.’s education, knowledge, experience, and skills; industry experts explaining the minimal requirements necessary to commence work in the position and why training in noted deficiencies is an not acceptable course of action; or an affidavit of the hiring official detailing the deficiencies noted with the basic job requirements and establishing a business necessity as to why the deficiencies cannot be corrected with any period of on-the-job training.

While some experts argue that this case is overreaching, the case is nonetheless a reminder that employers should explain in detail why on-the-job training is required for a particular position when denying an applicant on this ground.

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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.

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Green Cards

BALCA Upholds Denial where Employer Failed to Interview a Potentially Qualifying U.S. Applicant

The Board of Alien Labor Certification Appeals (“BALCA”) recently considered whether an employer should interview an applicant during the recruitment process in The Bank of Tokyo-Mitsubishi UFJ, LTD. In this case, the Employer filed an Application for Permanent Employment Certification (“ETA From 9089”) for the role of “Analyst/Systems Specialist-Systems Office for the Americas.” The case was audited and denied on the basis that the Employer unlawfully rejected a potentially qualified U.S. applicant without an interview. BALCA upheld the denial. First, the Employer required an Associate’s Degree “in any field” or 36 months of experience in “[r]elated tech exp w/systems analysis, design&dvlpt [sic], w/.NET, C#, C, C++, VBA.” Therefore, the fact that the Applicant did not list an Associate’s Degree on his or her resume was not an appropriate basis of disqualification. Second, the Applicant had more than 15 years of software development experience so it was reasonable to conclude that he may have 36 months of experience in the necessary skill sets. Notably, BALCA also rejected the Employer’s argument that the Applicant was not qualified because he had experience in “SQL programming language” and the Employer required technical development experience with “SQL Server (AF11).” BALCA explained that this did not matter because Section H of the ETA From 9089 did require experience with a particular type or version of SQL.

This case is thus a sobering reminder that employers should error on the side of caution and interview (or inquire further regarding) possibly qualifying U.S. applicants.

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Clarification on the Accrual of Unlawful Presence for F-1 Students

On August 9, 2018, USCIS again changed the way that unlawful presence is calculated for F, M and J students but for the better! See the new memo here.

For purposes of counting unlawful presence, a timely reinstatement application for F or M status is one where the student has not been out of status for more than five months at the time of filing. Under the revised final policy memorandum, the accrual of unlawful presence is suspended when the F or M non-immigrant files a reinstatement application within the five month window and while the application is pending with USCIS.

Further, and most importantly, USCIS has removed the retroactive application of unlawful presence for student who fail to maintain status after August 9, 2018. Meaning that for all future cases, unlawful presence does not start accruing until the day after it has been found that the student has failed to maintain status.

HLG applauds this move by USCIS to help students stay in the U.S. lawfully.

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Privacy Policy

HLG issues updated privacy policy in light of GDPR.

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Green Cards US Immigration Policy Visas - H-1b, L-1, E, O, TN

Changes to STEM OPT

It has been long rumored that the current Administration would try and eliminate the STEM OPT program. It appears that they have now struck a major blow to its use by staffing and consulting companies. They did not issue a new policy memorandum nor did they publish a proposed change to the existing regulation but, they have changed the content on the USCIS web-site. A review of these changes makes it very clear that there is a prohibition on the placement of any OPT STEM worker at a 3rd party site. The new description specifically refers to the concept of a “training experience” and states:
” Such entities [staffing companies] may not, however, assign or contract out students to work for one of their customers or clients, and assign, or otherwise delegate, their training responsibilities to the customer or client. As noted above, the employer that signs the Form I-983 must be the same entity that provides the practical training experience to the student.”

Given that this was announced via the USCIS web-site and did not go through any formal rulemaking means that it is very likely ultra vires and a prohibited interpretation but, unless an employer or other entity files a Federal lawsuit against the USCIS, individual examiners adjudicating I-765 applications based upon an I-983 with a staffing company as an employer are likely to follow this guidance. Further, it is expected that schools would not approve an I-983 with a staffing company as an employer.

For individuals with an already approved EAD card working for a staffing company, we do not believe this change impacts you.

It is most interesting that the web-page in question claims it was last updated in Jan of 2018 however, that is clearly not accurate. Whether the date was left in place in error or whether it was designed to appear as if there has been no change is unknown. Kudos to the Murthy firm for noting the web-page change and alerting the business immigration community.

We will provide updates as more information is provided.

Update as of 4-23-2018 Unofficial information from USCIS is that there is nothing new and that the web-site was updated in Jan 2018 and that guidance has been in effect since then. In speaking to a few FSA’s at universities, no new directive has been provided to them. The annual NAFSA meeting is in early May and this issue is expected to be a topic of discussion.