Articles Posted in Uncategorized

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The COVID-19 pandemic has caused rising unemployment in the United States, and unemployment days that exceed federal limits can result in a loss of status. Thus, USCIS reminds F-1 foreign nationals to update their employer information online with current unemployment data.

F-1 foreign nationals who are participating in post-completion Optical Practical Training (OPT), along with their designated school officials (DSOs), must update employer information in the Student and Exchange Visitor Information System (SEVIS). They can do this directly through the Student and Exchange Visitor Program (SEVP) Portal, or provide the information to their DSO. An F-1 foreign national must notify their DSO within 10 days of any changes to their personal or employment information. A DSO must update SEVIS within 21 days of receiving these changes.

It is important that F-1 foreign nationals and DSOs update this information in a timely manner. SEVIS will count each day without employer information toward the total number of unemployment days allowed. Failure to update this information, and exceeding unemployment limits, may result in:

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In light of April 22nd  Executive Order that currently bans many individuals seeking to enter the U.S. as immigrants, we would like to provide this fact sheet from the American Immigration Council that distinguishes the difference between nonimmigrant and immigrant employment based visa classifications and outlines basic information about how the employment-based U.S. immigration system works.

Please contact if you have any questions about employment-based visa classifications in the U.S.

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Due to COVID-19 the Department of Homeland Security (DHS) has issued a temporary policy regarding expired List B identity documents used to complete Form I-9, Employment Eligibility Verification.

Beginning on May 1, identity documents found in List B set to expire on or after March 1, 2020, and not otherwise extended by the issuing authority, may be treated the same as if the employee presented a valid receipt for an acceptable document for Form I-9 purposes.

Click Here  to view E-Verify’s complete informational flyer which includes additional instructions.

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On January 31, 2020 the Trump Administration expanded Presidential Proclamation 9645(commonly known as the Travel Ban 3.0) to suspend U.S. entry of nationals from the following countries: Burma (Myanmar), Eritrea, Kyrgyzstan, Nigeria, Sudan, and Tanzania.

The extended ban suspends entry for immigrants of Burma and Eritrea, Kyrgyzstan and Nigeria (except special immigrants who have provided assistance to the U.S. government) and Diversity Visa immigrants of Sudan and Tanzania.

Presidential Proclamation 9645 was initially issued in September 2017 and suspended the entry of immigrants and nonimmigrants of Iran (except F and M students and J exchange visitors), immigrants and temporary tourist and business visitors of Libya and Yemen, immigrants and nonimmigrants of North Korea and Syria, and certain government officials and their family members of Venezuela. Chad was included in the initial ban but in April 2018, Proclamation 9723 removed the visa restrictions previously imposed on Chad.

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A San Francisco immigration judge has granted a respondent’s request to become a lawful permanent resident based on an employer-sponsored petition even though the respondent has lived and worked in the U.S. without authorization. The judge decided that when the respondent was granted Temporary Protected Status (TPS gives work permits and deportation protection to people from countries in crisis) he was granted an “admission” to the U.S.

Under the provision of the Immigration and Nationality Act Section 245(k), foreign citizens remain eligible to become permanent residents through an employer-sponsored petition if they have accrued no more than 180 days of unauthorized employment or residence after they were “admitted” to the U.S.

The San Francisco immigration judge decided that since the granting of TPS is an admission and this respondent had accrued fewer than 180 days of unauthorized employment and residence after TPS was granted, he was eligible for permanent residence.

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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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