Articles Posted in Non-Immigrant Visa

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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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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 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 Council (AIC), a nonprofit immigration advocacy group, published fact sheets and resources with key data points, historical information, and background on hot topics in immigration.  These publications highlight various aspects of economic contributions immigrants, such as H-1B and Temporary Protected Status workers, provide to the U.S.

H-1B

H-1B is a temporary (nonimmigrant) classification that allows employers to petition for highly educated foreign professionals to work in “specialty occupations” that require at least a bachelor’s degree or the equivalent.

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U.S. Citizenship and Immigration Services (USCIS) proposed a rule that would require petitioners seeking to file H-1B petitions subject to the regular cap, including those eligible for the advanced degree exemption, to first electronically register with USCIS during a designated registration period.  The proposed rule would also reverse the order by which USCIS selects H-1B petitions under the H-1B cap and the advanced degree exemption.

We will begin preparing H-1B petitions in January 2019.  Contact our office to file an H-1B petition and with your questions about the H-1B program and the proposed rule.

Background

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On September 21, 2018, the Department of Homeland Security proposed new regulations related to public charge grounds of inadmissibility. The proposed regulations expand U.S. Citizenship and Immigration Services (USCIS) grounds to deny permanent resident applications based upon a green card applicant’s use of public benefit programs such as food assistance and section 8 housing vouchers.  The regulations will also apply to individuals seeking nonimmigrant visas and change of status applicants.

Background on Public Charge:

When reviewing Permanent Residence applications, USCIS determines whether applicants are likely to become a public charge or primarily dependent on the government for subsistence. Applicants found likely to become a public charge may be denied lawful permanent resident status.

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Work Authorization Extension Only Valid Through September 30, 2018

F-1 students who have an H-1B petition that remains pending on October 1, 2018, risk accruing unlawful presence if they continue to work on or after October 1 (unless otherwise authorized to continue employment), as their “cap-gap” work authorization is only valid through September 30.

“Cap gap” regulations allow an F-1 student who is the beneficiary of a timely filed H-1B cap-subject petition requesting a change of status to H-1B on October 1, to have his or her F-1 status and any current employment authorization extended through September 30.

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On October 23, 2017, U.S. Citizenship and Immigration Services (USCIS) published a new Policy Memorandum, rescinding a former memo from April 23, 2004, which instructed adjudication officers to defer to an original petition’s finding of eligibility when reviewing requests for extension of already approved nonimmigrant status, unless significant material changes in circumstances had arisen since the original petition was approved.  Based on the 2004 memo, extensions of H-1B or L-1B petitions have been granted readily and with minimal requirements for additional documentation.

The new memo instructs adjudication officers to review each petition for extension of nonimmigrant status as if it were an entirely new petition, subjecting it to the level of scrutiny applied to an initial petition.  While the memo acknowledges that, under U.S. regulations, the evidence required for extension of nonimmigrant status is less than that required for an initial petition, it asserts USCIS’ discretionary authority to request additional evidence, and instructs adjudicating officers to exercise that authority without constraint when reviewing extension of status petitions.

Recent months have seen a sharp increase in the number of requests for evidence made by USCIS in connection with new nonimmigrant petitions, resulting in delays in approving petitions.  Under the new policy governing extension petitions, it is likely that they, too, will now see an increase in requests for evidence and resultant delays.

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Effective October 3, 2017, U.S. Citizenship and Immigration Services (USCIS) resumed premium processing for all H-1B extension of stay petitions.  Premium processing is now available for all types of H-1B petitions.

When a petitioner requests the agency’s premium processing service, USCIS guarantees a 15-calendar day processing time.  If that time is not met, the agency will refund the petitioner’s premium processing service fee and continue with expedited processing of the application.

Please contact us if you are interested in requesting premium processing, or if you have any questions.

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UCSIS recently announced that it will restructure the focus of H-1B site visits. The H-1B visa is an employment based visa in which the employer petitions USCIS to grant lawful status for the purposes of work on the behalf of the employee. These visas help employers recruit foreign nationals in an effort to compensate for the lack of domestic supply of qualified and skilled workers. Enforcement officers will be looking at the following key points with in hopes of reducing H-1B abuse by employers:

  • Cases where employer information is not easily verifiable via commercially available data
  • High ratio of H-1B workers in comparison to U.S. workers