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According to Bloomberg Law, a case pending in federal district court could put a stop to USCIS’ practice of issuing of H-1B approvals that are only valid for several weeks or months despite requests for full three year validity that is allowed for H-1B petitions.

For approximately two years USCIS has been issuing H-1B approvals to information technology consulting companies that allow workers to remain in H-1B status for only a few weeks or months at a time. USCIS’ February 2018 policy requires consulting and staffing companies to submit itineraries detailing their H-1B employees’ work for the entire length of time requested on their petitions. If an employer can’t provide the full itinerary for the requested three year period, USCIS can shorten the validity of the petition to correspond with how much future work those companies can show.

Members of the IT consulting industry say the practice is causing them to lose business and thousands of dollars in filing and attorneys’ fees to request multiple H-1B extensions during the year. They also say it’s impossible to know exactly what a worker will be doing years into the future.

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On December 13, 2019 USCIS expanded its policy guidance regarding unlawful acts that may prevent an applicant from meeting the good moral character (GMC) requirement for naturalization.

Under the Immigration and Nationality Act (INA), an applicant for naturalization must establish GMC. The commission of, or conviction or imprisonment for, an unlawful act, during the statutory period for naturalization, may render an applicant ineligible for naturalization should the act be found to adversely reflect on moral character. The statutory period is generally five years for permanent residents of the United States, three years for applicants married to a U.S. citizen, and one year for certain applicants applying on the basis of qualifying U.S. military service.

Previously, the USCIS Policy Manual did not include extensive information about unlawful acts. The update to the Policy Manual provides additional examples of unlawful acts, more detailed instructions for USCIS adjudicators, and further identifies unlawful acts that may affect GMC based on judicial precedent.

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U.S. Citizenship and Immigration Services has announced it will implement an electronic registration process in the next H-1B lottery. Employers seeking to file H-1B cap-subject petitions for the fiscal year 2021 cap must first electronically register and pay the associated $10 H-1B registration fee.

Under the new process, employers seeking H-1B workers subject to the cap, or their authorized representatives, will complete a registration process that requires basic information about their company and each requested worker. USCIS has not yet announced what information will be required for the registration but has announced they will “post step-by-step instructions informing registrants how to complete the registration process on its website along with key dates and timelines as the initial registration period nears.”

The initial registration period will last from March 1 through March 20, 2020. The H-1B random selection process will then be run on those electronic registrations if the number of registrations surpasses the cap. Only those with selected registrations will be eligible to file H-1B cap-subject petitions.

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The visa bulletin is out at this link: December 2019

Employment-based petitions must use the Dates for Filing chart. The employment-based categories are as follows: EB-1 is current for all countries except China (September 1, 2017) and India (March 15, 2017); EB-2 is current for all countries except China (August 1, 2016) and India (July 1, 2009); EB-3 is current for all countries except China (March 1, 2017) and India (February 1, 2010);  EB-3 other workers is current for all countries except China (August 1, 2008) and India (February 1, 2010); EB-4 and religious worker visas are current for all countries except El Salvador, Guatemala, Honduras and Mexico (August 15, 2016); and EB-5 non-regional centers and regional centers are current for all countries except China (May 15, 2015). Family based petitions must use the Dates for Filing chart.  Family based petitions are backlogged, with the most recent date at October 1, 2019 for F2A (spouses and children under 21 of lawful permanent residents) and the longest queue for Mexico F4 (brothers and sisters of U.S. Citizens) at January 1, 1999.

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A U.S. District Judge in Oregon has temporarily blocked the Trump administrations’ healthcare mandate which would bar U.S. entry for any prospective immigrant who cannot prove they would be covered by qualifying health insurance within their first 30 days in the U.S. or have the financial means to pay for all “reasonably foreseeable” medical expenses.

The judge’s order, which was issued on November 2, will block the Trump Administration from implementing the healthcare ban for 28 days. On November 22, the judge will determine whether to issue a preliminary injunction in the case, which would last for the entire time the case is pending.

The lawsuit against the ban was filed by the American Immigration Council (AIC), an organization that utilizes litigation, research, and legislative and administrative advocacy to work towards a more and just immigration system. The lawsuit contends that the healthcare ban violates the law and will radically reduce the number of people who could enter the U.S. As many as two-thirds of all prospective immigrants (an estimated 375,000 people, annually) who would otherwise qualify for an immigrant visa would be banned.

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The American Immigration Council (AIC)  sites The National Foundation for American Policy (NFAP) October 2019 Policy Brief to describe U.S. Citizenship and Immigration Services’ (USCIS’)  increasing rates of H-1B denials and Requests for Evidence (RFEs). The NFAP, which is a non-profit, non-partisan research organization focused on immigration and international trade has reviewed USCIS data from FY 2009 to present to determine the trends.

NFAP reports that denials for initial H-1B petitions has quadrupled from 6% in FY 2015 to 24% in the first three quarters of FY 2019. Denial rates for H-1B petitions for continuing employment (such as H-1B Extension and Change of Employer petitions) have also quadrupled from 3% to 12% over the same period. RFEs were issued for 60% of completed cases in the first quarter of FY 2019 compared to the historical average of 20%.

Both the AIC and the NFAP note that the increased rates of Denials and RFEs are not a result of changes in law but have been implemented through agency memoranda and policy changes. NFAP further sites a University of Pennsylvania Wharton School of Business study that suggests the increased H-1B denial rates do not increase jobs availability for U.S. citizen workers but rather motivate companies to relocated to locations where it is easier for them to employ highly skilled workers, shrinking the U.S. job market for all highly skilled workers, including both U.S. citizens and immigrants.

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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).