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Immigration and Customs Enforcement’s (ICE) Student and Exchange Visitor Program (SEVP) published policy guidance regarding the responsibilities of F-1 students who are employed based on Optional Practical Training (OPT) and STEM OPT.  ICE reminds these students that they are responsible for providing a description of how their job relates to their major area of study to the Designated School Official (DSO) at their college or university.

OPT permits up to 12 months of temporary employment for certain foreign national students.  Science, technology, engineering and math (STEM) OPT permits an additional 24-month period of temporary employment with qualified employers of foreign national students who have graduated with degrees in approved STEM fields.

The DSO must review the student’s description, and determine whether there is a direct relationship between the job and the student’s major area of study.  The decision should be made on a case-by-case basis, and the DSO can request additional documentation if he or she has concerns.  The DSO must retain the description of the direct relationship and monitor and update the student’s records in the Student and Exchange Visitor Information System (SEVIS), the ICE web-based system that maintains information on foreign national students and exchange visitors in the U.S.

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Forbes reports that Immigration and Customs Enforcement (ICE) is conducting on-site inspections at worksites of students working on STEM OPT.  Science, technology, engineering and math (STEM) Optional Practical Training (OPT) employment is a 24-month period of temporary training for certain foreign national students, which directly relates to the students program of study in an approved STEM field.  Although this is a new practice, under the regulations ICE has the authority to conduct these compliance site inspections.

According to the Department of Homeland Security’s Study in the States website, the site inspection will address how the salary of STEM OPT employees is determined, whether there is sufficient structure to provide supervision and training of the employee, and the nature of the employer/employee relationship at any third party worksites.  The website states the following:

Site [inspections] will be limited to checking information related to student STEM OPT employment and ensuring that students and employers are engaged in work-based learning experiences that are consistent with the information supplied on the student’s Form I-983.

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United States Citizenship and Immigration Service (USCIS) documents released as a result of a Freedom of Information Act (FOIA) lawsuit filed against USCIS by the American Immigration Council (AIC) on the American Immigration Lawyer’s Association’s (AILA’s) behalf reveal the policies and sources behind recent H-1B petition restrictions and delays. AILA President Marketa Lindt states, “The documents released by USCIS reveal the way the agency has shifted its focus in… adjudications, creating more obstacles for U.S. businesses to hire and retain the talent they need.”

For example, the previously unreleased document Implementation of March 31, 2017 Memo, Rescission of the December 22, 2000 “Guidance memo on H1B computer related positions” which provides USCIS adjudicators with instructions for implementing the publicly released March 31, 2017 USCIS Policy Memorandum Rescission of the December 22, 2000 “Guidance memo on H1B computer related positions” eliminate many positions from qualifying as H-1B specialty occupations.

Forbes reports  that the Guidance Memo instructs adjudicators that entry level computer programmer positions generally do not qualify as a specialty occupations because the Department of Labor Occupational Outlook Handbook states that “. . . some employers hire workers with an associate’s degree” rather than a bachelor’s degree. The document goes on to state that “This same analysis should be conducted for occupations where the Occupational Outlook Handbook does not specify that the minimum requirement for a particular position is normally a bachelor’s or higher degree in a specific specialty.” Forbes notes that this policy is not grounded in law and contradicts the statute, which does not require an employee to have a degree but allows for qualification based on experience.

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John Oliver reports on the “get in line” attitude toward immigration on his show Last Week Tonight. Oliver argues that this mentality is misguided as there is no one line to stand in and that “the lines that do exist can be prohibitively long or have sudden dead ends. And for many people… there simply isn’t a line at all.” He goes on to outline the four categories of obtaining permanent legal residency in the U.S. and explains the difficulty or likelihood of achieving permanent legal residency through each method: family based immigration is subject to country caps and rigorous background checks; employment based immigration does not guarantee permanent legal residency and is also subject to country caps; the diversity lottery only selects 1 out of 285 applicants; and lastly, refugee and asylum has become increasingly difficult under current policies.

Read the Guardian Article featuring Oliver’s clip here (Oliver’s video is included in article).

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On September 4, 2019, U.S. Citizenship and Immigration Services (USCIS) published a proposed rule requiring employers seeking to file H-1B cap-subject petitions to pay a $10 fee for each registration they submit to USCIS for the H-1B cap selection process.  USCIS intends to have the registration system ready prior to the implementation of the H-1B registration process, which may be as soon as the H-1B cap filing season for FY 2021.

According to USCIS, the proposed fee will cover some of the costs of building and maintaining a new H-1B electronic registration system, which USCIS estimates will cost about $1.5 million to develop, on top of ongoing maintenance costs.

USCIS finalized a rule in January 2019 requiring employers seeking to file H-1B cap-subject petitions, including those eligible for the advanced degree exemption, to first electronically register with USCIS during a designated registration period.  The final rule also reordered the cap selection process to prioritize foreign nationals with a master’s degree or higher from a U.S. institution of higher education.

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The American Immigration Council (AIC) reports that U.S. Citizenship and Immigration Services (USCIS) is issuing Requests for Evidence (RFEs) and Denials at increased rates for H-1B and L-1 petitions.

The RFE rate for H-1B petitions has increased to almost 40% in the first three quarters of FY 2019 compared to 22 and 21% in FYs 2015 and 2016.  The RFE rate for L-1 petitions is even higher, nearing 54% in the first three quarters of FY 2019. By comparison, the L-1 RFE rate was just 34% in FY 2015.

USCIS uses RFEs to request for additional documents to confirm the validity of petitions. RFEs often add months to the H-1B and L-1 process and even when petitioners respond with additional information, increasingly USCIS issues denials. In FY 2019 (as of June), only 63% of H-1B petitions were approved after an RFE was issued, compared to 83% in FY 2015.  Only about 50% of L-1 petitions were approved after an RFE was issued since FY 2017.

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On May 31, 2019, The U.S. Department of State added new questions to Forms DS-160/DS-156 Nonimmigrant Visa Application and the Form DS-260 Immigrant Visa Application. The new versions of these forms require foreign national visa applicants to disclose information about their social media history. Applicants must disclose all the social media platforms they have used within the previous five years, as well as provide their username(s) for each platform.

This increased information gathering is a result of President Trump’s March 2017 executive order 13780, which requires the Secretary of State, the Attorney General, the Secretary of Homeland Security, and the Director of National Intelligence to develop “screening and vetting standards and procedures” for all immigration programs.

Think Immigration  suggests that the addition of social media questions on visa applications will increase processing times while the ACLU has suggested that the new requirement infringes on the rights of immigrants and U.S. citizens.

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The visa bulletin is out at this link: July 2019

The level of Employment-based demand, primarily for USCIS adjustment of status applicants, has been steadily increasing in recent weeks. For example, there has been no forward movement for India and China under the EB-1 employment based category. The Department of State expects the EB-1 final action date for India will move forward to February 22, 2017 in October 2019.

Employment-based petitions must use the Final Action Dates chart. The employment-based categories are as follows: EB-1 is at April 22, 2018 for all countries except China (May 8, 2017) and India (January 1, 2015); EB-2 is current for all countries except China (November 1, 2016) and India (April 24, 2009); EB-3 is current for all countries except China (January 1, 2016), India (July 1, 2009);  EB-3 other workers is current for all countries except China (November 22, 2007), India (July 1, 2009); EB-4 and religious worker visas are current for all countries except El Salvador, Guatemala, Honduras and Mexico (July 1, 2016); and EB-5 non-regional centers and regional centers are current for all countries except China (October 1, 2014), India (May 1, 2017) and Vietnam (October 1, 2016).  Family based petitions must use the Dates for Filing chart.  Family based petitions are backlogged, with the most recent date at March 8, 2019 for F2A (spouses and children under 21 of lawful permanent residents) and the longest queue for Philippines F4 (brothers and sisters of U.S. Citizens) at July 1, 1998.

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The H-1B court case ITServe Alliance v. USCIS consolidates several cases of information technology (IT) companies whose H-1B applications have been denied or approved with short validity periods.  Judge Collyer’s ruling for this case could carry major implications for how U.S. Citizenship and Immigration Services (USCIS) directs adjudicators to decide H-1B cases.

According to Forbes, Judge Collyer addressed three key issues in the lawsuit.  “First, the government has yet to provide a good explanation for the disparate outcomes and adjudication processes for different types of employers—those with H-1B employees who perform work on customer sites and those who do not.  The denial rates for initial H-1B petitions in [fiscal year] (FY) 2018 were 1% for large technology companies and 34% to 80% for companies that place H-1B [petition] holders at third-party sites.”

“Second, USCIS has to explain why it must require specific work assignments stretching out for three years for contractors even though the law permits H-1B professionals to be in ‘nonproductive’ time so long as they are paid.”  “Third, Judge Collyer will decide whether discovery is warranted to find out what is behind the changes in USCIS adjudications of H-1B petitions.”

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The American Immigration Lawyers Association (AILA), the national association of more than 15,000 attorneys and law professors who practice and teach immigration law, provides insight to the systemic nature of U.S. Citizenship and Immigration Services (USCIS) processing delays, and lists concrete steps you and the millions of other affected individuals and businesses can take in the face of USCIS backlogs.

Please contact our office at immigrationinfo@cornerlaw.com and refer to AILA’s handout for more information about processing delays.