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A group of eleven tech companies are suing the Department of Homeland Security arguing that USCIS’ February 2018 Policy Memo, “Contracts and Itineraries Requirements for H-1B Petitions Involving Third-Party Worksites” exceeds the agency’s power because they issued the policy as a new rule without following required rule-making procedures.

The February 2018 memo stipulates that petitioners filing H-1B petitions involving third-party worksites must provide evidence of the beneficiary’s specific work assignments and evidence of their actual control over the beneficiary.

According to the tech companies filing suit, H-1B denial rates have skyrocketed since the memo was issued. They argue that the memo functions as a new rule even though it did not undergo the required notice-and-comment procedure.

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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 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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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 .

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