The USCIS has announced an extension of its accommodations for responding to RFE’s, NOID, etc during this time of COVID-19. As a practical matter, most deadlines have been extended by 60 days. The USCIS has been extremely generous in steps it has taken to serve its customers during this pandemic and they should be saluted for their efforts.
This week, the U.S. Supreme Court struck down an order from the Trump Administration seeking to end the DACA program. There is speculation that the WH will attempt to simply slap a coat of paint on its flawed order and re-publish but, for now, the DACA program remains intact. The current DACA program remains a temporary fix and needs Congressional action to craft a long-term solution. The plight of Dreamers spans multiple Presidencies and regardless of who has been in the WH or in Congress, a solution has not been found. Although there is widespread support for the Dreamers themselves, there is not widespread support for providing benefits and amnesty for their parents and potentially other family members, hence the decades long impasse. For employers that have DACA employees, we would strongly urge you to explore options for sponsoring them for permanent residency.
As described earlier this week, the White House has announced its intention to issue a Proclamation that would restrict legal immigration specifically, certain types of work visas. They also indicated their intention to issue regulations that would, effectively end the H-1b program and severely restrict the ability of international students to come into the U.S. and study and then enter the U.S. talent pool. The U.S. Chamber of Commerce on behalf of its members, made up of both large and small U.S. employers, believe that the actions suggested by the WH would significantly and negatively impact U.S. businesses particularly those who employ STEM workers. They further believe that these proposed actions would increase the amount of work being sent off-shore, to the detriment of the U.S. economy. The Chamber sent a letter to the WH urging them to re-consider. We appreciate the advocacy being done by the Chamber. A summary of the current plan of the WH is outlined in a New York Times piece that ran today. Read it here.
The White House is expected to issue a proclamation within the next 2 weeks that will prohibit visa issuance and entry to the US for H-1b, L, and J visa holders for 120 days. There are expected to be some exceptions for certain types of workers. It is possible that L-1a holders and certain healthcare workers may be exempted but those are not confirmed yet.
We would encourage you to caution your employees from engaging in any international travel at this time as they may be stuck abroad. If you have workers that are abroad now waiting for visa appointments, visa issuance, or for travel to be permitted, the timing of their entry is expected to be delayed. In addition, we would encourage you to contact your governmental affairs dept or your Congressional or Administration contacts and urge them not to take these measures against legal immigration. We would also remind you that nothing is final until the proclamation has been issued and changes in what we have described above are possible.
In addition to the proclamation, the Administration has announced that they intend to issue a series of new regulations on a variety of topics including: wage levels, filing fees, joint employment, OPT STEM, OPT EAD cards, H-4 EAD, specialty occupation definition, and other measures designed specifically to counter Federal Court decisions that have been declaring many of their policies unlawful and unconstitutional. We expect the Administration to follow the Administrative Procedures Act and publish these changes so that there is an opportunity for notice and comment but that is not assured at this time. We will update you as further developments occur.
The USCIS has announced that premium processing will return in phases throughout June. Below is a chart to help you see when your petition will be eligible:
-All I-140’s can be premium processing
-H-1b transfers filed before June 8th can be upgraded
-H-1b extensions filed before June 8th can be upgraded
-H-1b cap exempt entities filed before June 8th can be upgraded
-Non H-1b I-129 petitions (TN, L-1) filed before June 8th can be upgraded. E-3 still not eligible for premium processing
-h-1b’s that are cap exempt entities, regardless of original filing date, can be premium processed
-H-1b’s for physicians under J-1 waiver
-All I-129’s can be premium processed (including cap cases, H-1b transfers that were filed after June 8th
Yesterday, the USCIS was handed another defeat at the hands of a Federal Judge, this time from Atlanta. In a case that echoed prior decisions from other Federal Courts, the Court ruled that the USCIS’ practice and policy over the past 10+ years relative to H-1b adjudications was unlawful. The decision struck at the interpretation of employer-employee and the itinerary requirement which had resulted in the issuance of shortened approval notices. A copy of the full decision can be read here
In even better news, the USCIS conceded defeat in only what can be imagined as the scene from the Wizard of Oz when it was proclaimed “Ding Dong the Witch is dead” and they entered into a settlement agreement.
This settlement agreement provides for the following:
1. The USCIS will rescind the 2018 Contracts and itinerary memo
2. The USCIS will stop applying the current itinerary language
A portion of the settlement agreement states that they will not apply the Neufeld memo but, this may be more limited than it is being reported.
What does this mean practically ?
1. There should be no more shortened approval notices limited by the duration of the WO/JO/SOW.
2. End client letters or other documentation should not be routinely required but, the USCIS may continue to ask for this type of documentation to prove the existence of a job that meets the specialty occupation standards
3. The USCIS will not automatically re-open previously shortened cases and issue full approval notices but, you can go into Federal Court and force this action.
As a result of these actions, we can expect the USCIS to issue new regulations but, given the amount of time it takes for regulations to be finalized, these will likely be completed by the Administration that wins in Nov.
A special thanks and salute to Jonathan Wasden and his team for these hard fought victories.
As the White House is contemplating placing a moratorium on the issuance of H-1b visas and the issuance of OPT STEM work permits, it may be helpful for the WH to check DOL data. If they do, they will learn that the unemployment rate of IT professionals, which make up a large percentage of H-1b workers and OPT STEM workers has not been impacted significantly by COVID-19. The unemployment rate for IT professionals was at 2.8% in April. It is true that 30+ million Americans are currently out of work due to the current pandemic, but, the impact on the IT space is nominal. IF the WH cares enough about the economy to actually check out the facts, they will drop their ill-conceived plan that attacks STEM jobs and will instead focus on other areas. For the data, check out the NFAP policy brief.
The USCIS has pleaded to Congress for additional funding due to the implications of COVID-19. Guess they figure everyone else’s hand is out, why not theirs. They have stated that if they do not receive the additional funding, they will add a 10% service charge to applications. Maybe they should consider restoring the premium processing service which generates $1440.00 per petition ? Or maybe they should make their processing of cases more efficient and cost-effective eg. they can stop requesting the annual report for publicly traded cos.; having to receive, scan in and store what is often a 1000+ page document is unnecessary. Or maybe they should stop issuing RFE’s at a rate that is 4x greater than under any other administration. Or maybe they should stop issuing 3 mo. H-1b approval notices when the law supports the issuance of a 3 yr. approval thus eliminating literally tens of thousands of unnecessary filings ? Or maybe they should stop denying H-1b petitions where the law does not support such a decision; as they lose case after case in Federal Court, surely the money they are paying out to the winning plaintiffs and the costs to defend these arbitrary and capricious decisions add up. But, hey those are just my thoughts; I’m no budget expert. Asking Congress for a handout or charging your customer that you are failing to serve is another route to take.
When President Trump issued his Executive Order last month suspending the issuance of green cards for 60 days, he included a statement promising that all legal visa programs would be reviewed. It is common knowledge that the Trump Administration does not support legal immigration and has been trying to restrict business visas since he took office and the H-1b visa has been a top target. U.S. employers who use the H-1b visa to supplement its workforce have been anxiously waiting the next EO. A letter from 4 Republican Senators has been released by Politico and it provides a wish list including the elimination of the OPT and STEM OPT programs, the elimination of an investor visa and the elimination of new H-1b visas bringing into doubt this year’s cap cases among others. The idea that the unemployment rate of restaurant workers is relevant to the employment of STEM workers is nonsense and I would guess that each of these 4 Senators, are well aware of the idiocy of their claims however, all politicians know how to take advantage of a crisis to push an agenda that they could not have otherwise pursued. Earlier this week, Forbes ran an article discussing possible restrictions that could be coming. As of now, an EO has not been released so the content of and the consequences are mere speculation but, we have a glimpse at the wish list and it is ugly.
Several Senators have announced that they have proposed a bi-partisan bill in the Senate that would provide a short term increase in the number of immigrant visas available for Medical Doctors and RN’s. Given the current climate, there are a limited number of bills that stand a chance to be approved but, given the bi-partisan nature of this proposal and the current shortage of healthcare workers more exacerbated by the COVID-19 virus, it is possible that it could pass. We will provide updates as they become available. If you are a healthcare employer, we would strongly encourage you to reach out to your Senators and express your support.