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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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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 U.S. Embassy and Consulates in China announced that they will consolidate H and L visa applications for foreign nationals. Effective March 1, 2019, interviews for H and L visas will be conducted only at the Embassy in Beijing, and the Consulates in Guangzhou, and Shanghai. H and L visa interviews will no longer be conducted at the Consulates in Chengdu or Shenyang. For more information, please go to: Applying for a U.S. Visa in China.

If you have questions or need assistance with consular processing of visas in China or anywhere else in the world, please contact at immigrationinfo@cornerlaw.com .

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The immigration community is scratching its head about Trump’s recent Tweet about H-1B visas. “H-1B holders in the United States can rest assured that changes are soon coming which will bring both simplicity and certainty to your stay, including a potential path to citizenship,” tweeted Trump on January 11, 2019.  Trump may have been referring to the USCIS proposed regulation to change the order of the H-1B lottery; however this will have no effect on H-1B visa holders ability to secure green cards or citizenship.  The government has also not announced any changes to the current path to permanent residence or citizenship for H-1B visa holders.  So no one really knows what his Tweet meant!

For more information and comments: Forbes 

Or contact  Cornerstone Law Group

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U.S. District Judge Jesse Furman has blocked U.S. Commerce Secretary Wilbur Ross’ attempt to include a question about citizenship on the 2020 U.S. Decennial Census in State of New York et al. v. U.S. Department of Commerce, et al.

The U.S. Census Bureau, which falls under the U.S. Department of Commerce, has not asked a citizenship question since 1950.  The census, which measures U.S. population and demographics every ten years, serves to properly allocate House of Representatives seats and helps to appropriate billions of dollars in Federal funds, grants, and support to states, counties and communities.

According to Secretary Ross, the citizenship question was a response to a U.S. Department of Justice request for better citizenship data to enforce the Voting Rights Act and its protections against racial discrimination in voting.

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The visa bulletin is out at this link: February 2019

For the Date for Filing, employment-based categories are as follows: EB-1 is at June 1, 2018 for all countries except China and India (October 1, 2017); EB-2 is current for all countries except  China (November 1, 2015) and India (May 22, 2009); EB-3 is current for all countries except China (January 1, 2016), India (April 1, 2010) and the Philippines (October 1, 2017);  EB-3 other workers is current for all countries except China (June 1, 2008), India (April 1, 2010) and the Philippines (October 1, 2017); EB-4 and religious worker visas are current for all countries except El Salvador, Guatemala, and Honduras (May 1, 2016); and EB-5 non-regional centers and regional centers are current for all countries except China (October 1, 2014).  Family based petitions are backlogged, with the most recent date at December 1, 2017 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 August 1, 1997.

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There has been a significant increase in the frequency with which IT professionals are refused visas at consular posts in Mission India. These refusals appear to be the result of the Buy American/Hire American Executive Order (BAHA). AILA, our immigration lawyers association, has provided the following strategies for visa issuance:

  • Applicants must be prepared to discuss the job offered and the specific skill set required to perform the job.
  • Applicants should be prepared to provide a succinct “elevator speech” explanation to the consular officer about the position. The applicant must clearly communicate what they do (or will be doing) and should be prepared to articulate the value that they bring to the U.S. employer.
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