Agencies Open H-1B Cap Season with Initiatives to Combat Fraud and Abuse

Posted in Department of Justice, H-1B, U.S. Department of Labor, USCIS, Visas

The U.S. immigration agency’s busiest day of the year was marked with reminders about the dark side of the H-1B visa program.  Acceptance of H-1B cap-subject petitions started on April 3, 2017. But the flurry of H-1B filings were met with announcements from agencies involved with the H-1B program about measures designed to tighten policies and further regulate the H-1B program. These agency announcements indicate a coordinated message of cracking down on H-1B fraud in order to protect the U.S. worker.

USCIS Press Release and Policy Memorandum  

While some U.S. Citizenship and Immigration Services (USCIS) employees were busy accepting what is expected to be several thousand H-1B petitions at its Vermont and California Service Centers on April 3, 2017, opening day of the 2017 H-1B lottery, other USCIS employees were putting the finishing touches on a press release outlining new plans to combat employer fraud and abuse in the H-1B visa program.

USCIS Press Release:

The release, titled “Putting American Workers First: USCIS Announces Further Measures to Detect H-1B Visa Fraud and Abuse,” was a clear signal by USCIS that it plans to improve the integrity of the H-1B program and ensure that the program is in no way harming U.S. workers. USCIS said that its site visits, operated by its Fraud Detection and National Security (FDNS) directorate, will focus on employers who place employees offsite as well as employers who are H-1B dependent. H-1B dependency, which is defined by statute, means a high percentage of an employer’s workforce is made up of H-1B workers. This initiative is yet more evidence that USCIS is taking aim at third-party staffing companies. The press release also provided a USCIS email address for reporting suspected incidents of H-1B fraud and abuse and also reminded the public about additional ways it can let authorities know about possible misuse of the H-1B program via a Department of Labor form and by contacting Immigration and Customs Enforcement’s Homeland Security Investigations (HSI) unit.

USCIS Policy Memorandum:

On March 31, 2017, USCIS issued a policy memorandum to rescind the Dec. 22, 2000 guidance on H-1B computer-related positions.  This March 2017 memorandum includes guidance that the Occupational Outlook Handbook (OOH), a long relied-upon resource for petitioners and attorneys alike to classify jobs and to confirm their status as specialty occupations, should no longer be used as the main resource to determine whether a position is a specialty occupation position.  The guidance focuses heavily on the job code for “Computer Programmers,” which it notes may not qualify as a specialty occupation because most programmers have a bachelor’s degree, but some do not.  Most notably, this guidance includes discussion about the Wage Level and corresponding prevailing wage, suggesting that a job that is coded at a Level I prevailing wage should be scrutinized heavily because it would “likely contradict a claim that the proffered position is particularly complex, specialized, or unique compared to other positions within the same occupation.”

Department of Justice’s Immigrant and Employee Rights Section

The Department of Justice’s Immigrant and Employee Rights Section (IER), formerly known as the Office of Special Counsel for Immigration-Related Unfair Employment Practices, also chimed in on H-1B cap opening day with a reminder to H-1B employers that they may not discriminate against U.S. workers. IER, which is responsible for enforcing the anti-discrimination provision of the Immigration and Nationality Act (INA), explained in its press release that employers may violate the INA if they prefer to hire H-1B visa holders over U.S. workers.

Department of Labor’s Press Release

The Department of Labor (DOL) is the most recent agency to issue a press release for the purpose of combatting H-1B fraud, expressing support for the efforts of its colleagues at USCIS and DOJ, while adding its own plans. In addition to increasing its coordination with other federal agencies to investigate and prosecute misuse of the H-1B program, DOL said it is considering changes to the Labor Condition Application, which is a required part of the H-1B visa petition process, “to provide greater transparency for agency personnel, U.S. workers and the general public.” The DOL also said it would continue with its stakeholder engagements on how to improve the H-1B program so as to provide greater protections to US workers.

GT will continue to follow and report on and analyze these agency announcements and guidance.

CBP Announces I-94 Website Undergoing Maintenance

Posted in U.S. Customs and Border Protection

The U.S. Customs and Border Protection (CBP) has announced that its I-94 website will be under maintenance and will not be available during the following periods: (1) March 30, 2017 from 1:30 a.m. to 5:30 a.m. EDT; (2) April 2, 2017 from 1:30 a.m. to 5:30 a.m. EDT; and (3) April 6, 2017 from 1:30 a.m. to 5:30 a.m. EDT. During these times, the ability to view a recent I-94 record, obtain recent travel history, and purchase a provisional I-94 will be disrupted; CBP advises against using the aforementioned functions accordingly.  

Foreign nationals present in the United States in nonimmigrant visa status should note the CBP I-94 website maintenance periods mentioned above and may wish to access any relevant I-94 records and/or travel history records prior to these times. Those planning to return to the U.S. from international travel while the site is unavailable, should access the CBP system after site maintenance is complete to ensure the electronic I-94 record is correct and consistent with the relevant passport entry stamp received during the admission process. Greenberg Traurig can assist with any questions regarding corrections to I-94 entry records or the admission process.

 

Greenberg Traurig Elevates Jennifer Hermansky to Shareholder in Philadelphia

Posted in Awards & Recognitions, EB-5 Program, Immigrant Visa

hermanskyThe Business Immigration & Compliance Practice of Greenberg Traurig, LLP is pleased to announce that Jennifer Hermansky has been elevated to shareholder in the Philadelphia office. Hermansky focuses her immigration practice on both employment-based and family-based immigration. Specifically, she focuses her practice on EB-5 immigrant investor visas. She has prepared and filed many immigrant investor visa petitions, both through individual investments and regional center investments. She is among 40 attorneys Firmwide who were elevated to shareholder in more than 10 key practice areas.

To read full press release, click here.

Increased Scrutiny for Identified Populations & Social Media Review

Posted in Executive Order, Travel, Visas

We continue to see immigration as a moving target with recent news of four cables issued by Secretary of State Rex Tillerson guiding implementation of increased security protocols and vetting for consular posts around the world. Secretary Tillerson issued initial cables March 10 and 15 in anticipation of the new Travel Ban scheduled to take effect March 16. In response to the federal court action in Hawaii staying implementation of the new Executive Order, he followed these with a third cable March 16 rescinding large portions of his initial communications. Finally Tillerson sent a fourth cable March 17 providing final revised guidance on policy for vetting identified populations and increased social media checks.

The March 17 guidance directs consular officers to identify populations “warranting increased scrutiny” and also implements a “mandatory social media check” for certain individuals based upon time spent in Islamic State-controlled territories. Although we have seen a slight increase in review of social media in recent years, it is less common than one may believe. Consular officers have indicated that they rarely engage in deep screening due the large volume of social media available and the corresponding time it takes to review the information. In addition to new social media directives, the fourth and final cable also leaves in place direction to “develop a list of criteria identifying sets of post applicant populations warranting increased scrutiny.” While a list of specific questions to ask of individuals from identified countries was rescinded with the March 16 and 17 cables so as to comply with existing law, the general directive remains.

With the exception of the two directives above, consular officials have indicated that the guidance provided in the most recent cable may not stray far from current practice, as visa applications already go through a demanding vetting process. That being said, we do anticipate these new directives will increase visa processing times in many countries. We encourage employers and those planning to travel for visa processing purposes to plan accordingly.

Greenberg Traurig’s Attorney Ian Macdonald Featured in NPR News Marketplace

Posted in Awards & Recognitions, H-1B, Visas

MACDONALDI

Greenberg Traurig shareholder Ian Macdonald was recently quoted by National Public Radio (NPR) for a story on the Marketplace Morning Report, which is part of the Marketplace portfolio of public radio programs. Macdonald provided an employer’s perspective on H-1B visas and challenges employers must face when sponsoring highly-skilled workers. To read the full article, click here.

 

EAD Validity Extended for Six Months for TPS El Salvador

Posted in Employment Authorization, Temporary Protected Status, TPS, USCIS

el salvador shutterstock_155055182The United States Citizenship and Immigration Services (USCIS) will automatically extend the validity of Employment Authorization Document (EAD) cards issued under Temporary Protected Status (TPS) for El Salvador. The automatic extension will be for 6 months, through Sept. 9, 2017.

Those who have an EAD issued under the TPS designation for El Salvador that expired Sept. 9, 2016 will automatically have the validity of the EAD extended until Sept. 7, 2017. This is because on July 8, 2016, DHS announced that it would extend EADs issued under TPS for El Salvador for 18 months, to March 9, 2017.

To prove continued valid work authorization, the employee can present the TPS-related EAD as well as a copy of the Federal Register notice announcing the automatic extension.

Greenberg Traurig Listed as One of New York City’s Top Immigration Law Firms by JD Journal

Posted in Awards & Recognitions

Greenberg Traurig’s Business Immigration & Compliance practice was recently listed by JD Journal as one of New York City’s top immigration law firms.  JD Journal is a recognized legal resource, providing legal news and law firm news for attorneys, lawyers, law students, paralegals, law firms, and other legal professionals. Greenberg Traurig’s Business Immigration & Compliance practice has nearly 100 legal professionals nationally. Led by Kate Kalmykov, our New York Immigration team has developed into one of the most recognized immigration practices in New York City.  To view JD Journal’s full list of top Immigration firms in New York City, please click here.

 

Two Temporary Restraining Orders Issued for the Executive Order on the Travel Ban

Posted in Executive Order, Temporary Restraining Order

On March 15, 2017, the day before President Trump’s new Executive Order (EO) entitled “Protecting the Nation from Foreign Terrorist Entry into the United States” went into effect, a federal judge in Hawai’i issued a nationwide temporary restraining order (TRO) blocking the implementation of the EO. This EO, issued on March 6, 2017, revoked and replaced the original EO issued on Jan. 25, 2017. The first EO was also temporarily halted by a federal court in Seattle, after which the Ninth Circuit stayed the ruling.

In the current case at hand, State of Hawai’i and Ismail Elshikh vs. Donald J. Trump, et al., Judge Derrick K. Watson of the U.S. District Court for the District of Hawai’i granted the Motion for TRO filed earlier in the week. The TRO was granted on grounds that the EO violated the Establishment Clause of the U.S. Constitution.

In his ruling, Judge Watson cited portions of the new EO that suspend U.S. entry of nationals from Iran, Libya, Somalia, Sudan, Syria, and Yemen, with certain exceptions carved out that were not explicit in the first EO, such as exempting lawful permanent residents and those who are already physically in the United States. The new EO also includes text that suspends the U.S. Refugee Admissions Program for 120 days.

The plaintiffs in the case, the State of Hawai’i and Dr. Elshikh, both cited to injuries that would occur to both the state and the family, respectively, if the EO was implemented, since it bans travel for nationals from one of the six designated countries who are abroad. The plaintiffs also stressed that the text of the EO effectively targets the Muslim religion, quoting statements made during interviews and campaigns by the administration.  As such, the plaintiffs sought to enjoin Sections 2 and 6 of the new EO.

Judge Watson found that the State of Hawai’i had standing, based on the fact that its university systems would suffer from both a cultural and financial burden, as would its tourism industry. He also found that Dr. Elshikh had standing due to the fact that he was able to show injury to his family if the EO was implemented.

As to the legal basis for granting the TRO, Judge Watson found that due to the background, history, and intent of the newly issued EO, the Plaintiffs were likely to succeed on the merits of an Establishment Clause claim.

In addition, on March 16, 2017, a federal judge in Maryland also temporarily blocked the order.

Greenberg Traurig will continue to monitor events surrounding this TRO and provide updates relating to relevant agencies in connection with the newly issued EO.

New Travel Ban Order to Temporarily Halt Entry for Those Seeking New Visas from 6 Muslim-Majority Countries

Posted in Executive Order, U.S. Customs and Border Protection (CBP), Visas

The heavily anticipated new Executive Order (EO), “Protecting the Nation from Foreign Terrorist Entry into the United States,” banning nationals from six countries from entering the United States, was signed by President Donald Trump on March 6, 2017 with an effective date 10 days following on March 16, 2017. This new EO revokes and replaces the previous EO 13769 signed on Jan. 27, 2017. The replacement EO provides additional clarification that stemmed from judicial review. For a summary of EO 13769, and a history of events that transpired, please visit.

Highlights of changes in the new EO include:

  • The six countries under the travel ban are Iran, Libya, Somalia, Sudan, Syria, and Yemen.  Iraq has been lifted from the travel ban.
  • Clarification has been given that lawful permanent residents are not subject to the travel ban, and dual nationals may use another passport (that is not from one of the six countries) to enter the United States.
  • Waivers may be granted to individuals applying for a visa who are subject to the travel ban if: 1) denying entry during this period would cause undue hardship, 2) the entry would not pose a threat to national security, and 3) it would be in the national interest of the United States. Examples were provided of situations where a waiver would be appropriate.
  • Entry under the U.S. Refugee Admission Program will be halted for 120 days from March 16, 2017. Notably, the blanket halt on Syrian refugees has been removed.
  • The Visa Interview Waiver Program is suspended until further guidance from the Department of State.
  • Those who are in the United States will not have their visas revoked.

The new EO provides an explanation for some components of EO 13769 that are now rescinded, amended, or clarified in this Order. A section-by-section analysis is below:

Section 2:  Suspension of Visa Issuance- Iraq Removed

The text of this EO calls for the suspension of issuance of visas to nationals of Iran, Libya, Somalia, Sudan, Syria, or Yemen, except in case-by-case waivers, for 90 days from the effective date of the EO (March 16, 2017), while an ongoing assessment of the countries for terrorist threats is conducted. Notably, Iraq has been removed as one of the original countries subject to the travel ban. The reason cited is that the United States has been closely working with the Iraqi government and because of the military presence in Iraq, and Iraq’s commitment to fight ISIS, removing this country from the travel ban is justified.

In addition, the Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, will conduct a worldwide review to identify additional information, if necessary, from any country to ensure that the individual applying for a visa benefit is not a security threat. Within 20 days of March 16, 2017, a required report will be submitted to the President on the results of the worldwide review. Copies of this report will also be given to the Secretary of State, the Attorney General, and the Director of National Intelligence.

Once the report has been submitted to all parties, the Secretary of State shall request the foreign governments to provide the information needed within 50 days of notification. After the 50 day period has expired, the Secretary of Homeland Security, with the Secretary of State and the Attorney General, will submit to the President a list of countries where certain categories of foreign nationals should be prohibited from visa issuance because they have not provided the information. Additional countries may also be submitted for consideration to be added to the list of countries where restrictions or limitations are deemed necessary to protect the United States. In the same way, countries may be recommended for removal from the list as well.

Four reports, each submitted within 30 days of the effective date of the Order (March 16, 2017) to President Trump, are required to document the progress. Continue Reading

Effective April 3, 2017, USCIS Will Temporarily Suspend Premium Processing for All H-1B Petitions

Posted in H-1B, The U.S. Citizenship and Immigration Services, USCIS

Late Friday evening on March 3, 2017, The U.S. Citizenship and Immigration Services (“USCIS”) announced that it will temporarily suspend its premium processing service for all H-1B petitions, including CAP-subject H-1B petitions.  The temporary suspension will begin on Monday, April 3, 2017, and may continue for up to 6 months.  This procedural change is intended to help USCIS clear the backlog of long-pending H-1B petitions that USCIS has not yet reviewed. USCIS will give priority review to H-1B extension petitions that are nearing the end of the automatic 240-day work authorization extension period.  USCIS has made other efforts to alleviate the long-pending backlog of pending H-1B petitions with the Vermont and California Service Centers by directing petitioners to submit H-1B extension requests with the Nebraska Service Center, regardless of the H-1B worksite location.

USCIS will process all H-1B petitions filed with a premium processing request that are received before April 3, 2017.  Because April 3 marks the first business day of April, when the H-1B CAP opens, CAP-subject H-1B petitions will not be eligible for premium processing.

The temporary suspension will not impact employers’ ability to premium process other petitions that are eligible for premium processing after April 3, 2017.  This list includes other common Form I-129 petitions, such as L-1, TN, O-1, and H-3, and immigrant petitions, like PERM-based I-140, and EB-1 extraordinary ability petitions.

Effects on Employers

The suspension of premium processing for H-1B petitions will impact an employer’s ability to request adjudication of an H-1B petition in 15 calendar days. Common employer H-1B premium processing requests will be unavailable, such as:

  • H-1B change of employer petitions: Employees who are porting their H-1B petitions from one company to another will need to wait 3 to 5 months before they receive the final H-1B approval notice. So, even though H-1B-porting workers may start working when USCIS is in receipt of the petition (generally a couple of weeks after an offer of employment is accepted), some H-1B workers will be very concerned with the prospect of moving to a new employer and waiting several months or longer for USCIS to confirm that the H-1B is approved.  This may affect recruitment initiatives as employers will be unable to offer H-1B candidates the peace of mind of an approved H-1B petition prior to commencing employment unless both the employer and employee are willing to wait several months for the H-1B to be approved via regular processing.
  • H-1B change of status petitions:  Employees who have an H-1B change of status petition filed with USCIS will have to wait for USCIS to approve the H-1B petition before they may begin working for the employer in H-1B status.   Employees may continue working while an H-1B change of status petition is pending provided they have valid work authorization. Employees without valid work authorization will need to wait for the H-1B petition to be approved prior to working.  Employees should not travel abroad while an H-1B change of status petition is pending because USCIS may consider the employee’s international travel as an “abandonment” of the H-1B change of status request.
  • H-1B extensions: Whenever an employer timely files an H-1B extension request and the employee’s H-1B status expires while the petition is pending with USCIS, the employee’s work authorization is automatically extended for 240 days after the expiration date.  Employees should not travel abroad if they are in the 240-day automatic extension period.

Effects on H-1B Employees

The suspension of premium processing of H-1B petitions, particularly extension requests, may also impact an employee’s plans to travel internationally while the petition is still pending with USCIS.  As an example, if the employee’s H-1B status expires while the H-1B extension petition is still pending, the H-1B employee will not be able to reenter the United States or secure a new visa stamp if the old visa stamp has expired without a Form I-797 H-1B approval notice. The suspension of premium processing by USCIS may also impact an employee’s ability to renew a driver’s license if the employee cannot present a new Form I-797 H-1B approval notice as required by many states.

Actions Employers and Employees May Take

Premium processing will continue to remain available for all H-1B petitions until April 2, 2017, which is a Sunday.  To be safe, H-1B petitions requesting premium processing should be received by USCIS on March 31. Employers and employees should file H-1B petitions now, or upgrade pending H-1B petitions to premium processing if the employee resides in a state that will not extend a driver’s license without a Form I-797 H-1B approval notice, or if the employee needs to travel internationally after April 3, 2017.  Employers that are wishing to “port” an H-1B employee from a different company may also wish to file the H-1B petition under premium processing to ensure that USCIS adjudicates the H-1B petition within 15 calendar days.

Availability to Request Expedited Processing

During the temporary suspension period, USCIS will accept requests to expedite an H-1B petition so long as the expedite request satisfies one of the expedite criteria.  It is important to note that USCIS’s decision to expedite an H-1B petition is completely discretionary.  To support an expedite request, employers should be prepared to submit documentary evidence supporting their request.  The expedite criteria listed by USCIS are noted below:

  • Severe financial loss to the company or H-1B employee;
  • Emergency situation;
  • Humanitarian reasons;
  • Nonprofit organization whose request is in furtherance of the cultural and social interests of the United States
  • Department of Defense or a national interest situation – These particular expedite requests must come from an official U.S. government entity and state that the delay will be detrimental to the government;
  • USCIS error; or
  • Compelling interest of USCIS.

Examples of valid reasons that USCIS will accept to expedite the processing of an H-1B petition may include H-1B petitions filed as a change of status or for consular notification because these types of H-1B petitions do not permit the employee to begin working for the employer upon receipt of filing with USCIS under the 240-day rule.  The employees must first wait for the H-1B petition to be approved before they can begin working for the employer, or, if they are outside the United States, obtain an H-1B visa abroad and enter the United States.

Emergency situations may include urgent medical or family emergencies, such as undergoing surgery, visiting an ill family member, or attending a family member’s funeral abroad.  If the H-1B employee working under the 240-day rule has an expired H-1B visa stamp, and needs to travel abroad due to an emergency, the H-1B employee will not be able to obtain a new visa stamp and return to the United States until his or her pending H-1B petition is approved by USCIS.

Please contact your GT immigration attorney for further information.

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