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

Stranded Abroad due to the Presidential Proclamation ?

Many workers and dependents are currently stranded overseas due to the recent Presidential Proclamation suspending visa issuance until Jan 2021. Many of these individuals were already living and working in the U.S. but, circumstances had them overseas at the time the COVID-19 pandemic hit and they became stranded due to health concerns, travel restrictions and now the visa ban. With most U.S. Consulates remaining closed, the visa ban has little effect at present. However, as Consulates re-open, the ban will force families to remain separated and keep people from jobs for which they were already approved. Here is a recent article from Bloomberg discussing this issue.

If you or a family member are personally stranded and may be willing to be a participant in a Federal lawsuit against the Trump Administration and this policy, a friend of ours, Greg Siskind is collecting information from potential plaintiffs and you can complete the form here.

Government Agency Actions - USCIS, ICE, etc. Visas - H-1b, L-1, E, O, TN

USCIS New Policy Memo on H-1b Visas

Pursuant to a settlement agreement reached in Federal Court, the USCIS has released an official Policy Memorandum which eliminates the Neufeld memo from 2010 and the contracts and itineraries memo from 2018. This is a major victory for IT and healthcare staffing cos. The new memo reminds employers that they must continue to prove the existence of an employer-employee relationship but, that is now defined per the language of the statue instead of a made up policy designed to target a specific industry. As a practical matter, this new policy should result in full approvals and will alter the number of RFE’s and the issues raised. This new policy will also change the type of evidence that is needed to file a new case.

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

U.S. Chamber of Commerce Advocates Against the WH Plan

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.

Visas - H-1b, L-1, E, O, TN

USCIS Wins One :(

The USCIS recently enjoyed a rare victory in Federal Court prevailing in Distro Systems vs. USCIS in a case involving the definition of a specialty occupation. Distro had filed an H-1b for for the position of Associate-Technology Practice and had classified the position under the DOL’s SOC Code “Computer Occupations-All Other”. During the appeal, the employer claimed that the occupation chosen was the Computer Systems Engineers/Architects sub category however, the Court noted that the majority of their arguments involved a different DOL SOC code specifically, that of a Software Developer. Based upon the decision, it appears that the denial was based upon the number of discrepancies in the record relative to the job description and the SOC category chosen by the Petitioner, along with the proof supplied by the petitioner which was limited. The judge also referenced that the salary offered to the employee was only $46,342 and based upon my experience, that seems horribly low for an H-1b caliber position. Given the facts in this case and the clear issues that this case had, we do not believe this decision has any meaningful effect beyond this petition.

Government Agency Actions - USCIS, ICE, etc. US Immigration Policy Visas - H-1b, L-1, E, O, TN

White House Proclamation Coming Soon ?

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.

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

Premium Returns

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:

JUNE 1st:
-All I-140’s can be premium processing

JUNE 8th:
-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

JUNE 15:
-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

JUNE 22nd:
-All I-129’s can be premium processed (including cap cases, H-1b transfers that were filed after June 8th

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

H-1b Victory with a Capital V !

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.

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

Will the Facts Matter ?

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.

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

The Next Shoe to Drop

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.

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

Trump Executive Order Suspending Immigration

Today, President Trump issued an Executive Order that would suspend the issuance of immigrant visas (green cards) for a period of 60 days. The EO only applies to persons obtaining an immigrant visa from abroad and contains exemptions for a number of categories including healthcare workers. The exemption for healthcare workers may apply only to those entering the US specifically to combat COVID-19 but, that is not clear. With the on-going closure of US Consulates abroad and with immigrant visa numbers exhausted (retrogressed) in many categories until Oct 1, 2020, this EO has very little, if any, effect on employment based immigration. The EO does contain a foreboding announcement that within 30 days, an additional EO may be issued to address non-immigrant visas. Given this Administration’s open disdain for the H-1b and L-1 programs and the repeated efforts to circumvent the current regulations and statutes, this may be an opportunity for them to achieve their goal of reducing legal immigration, just in time for the election.