Seeking Permanent Residence? USCIS Issues New Interview Requirements Taking Effect Oct. 1

Posted in Adjustment of Status, Department of Homeland Security, USCIS

The Department of Homeland Security announced on Aug. 28, 2017, that beginning on Oct. 1, USCIS will begin requiring in-person interviews at local District Offices for adjustment of status applications based on employment, as well as certain refugee/asylee relative petitions.

In the past, USCIS did not require an in-person interview adjustment of status applications based on employment, and only conducted these interviews on rare case-by-case bases.  The purpose of these interviews is to verify the information in the application and to determine the credibility of the individual seeking permanent residence. The current processing times for each service center processing Adjustment of Status applications based on employment are as follows:

The applications to adjust status will need to first be processed by USCIS, after which it will be sent to the local district office for an interview to be scheduled.  Due to the already backlogged timelines as indicated in the chart above, adding this extra step will further add to the processing times.  Please note that if the applicant and his or her dependents do file Adjustment of Status applications, they will receive work and travel authorization within 90-120 days of submission.

Greenberg Traurig is ready to assist with any queries related to this matter. Please subscribe to our blog for updates.

USCIS Issues Policy Memorandum to Define “Affiliate” or “Subsidiary for Determining the H-1B ACWIA Fee

Posted in U.S. Department of Labor, USCIS

On Aug. 28, 2017, USCIS released a policy memorandum that clarified the definition of “affiliate” and “subsidiary” for purposes of determining the H-1B ACWIA fee.  The H-1B ACWIA fee is $1500 for H-1B petitioners who have 26 or more full-time equivalent (FTE) employees, and half that amount ($750) for H-1B petitioners who have 25 or fewer FTE.  The FTE count includes those FTE employees employed by any affiliate or subsidiary of the H-1B employer.  The fee is mandatory for all new H-1B petitions, and then required again for the first extension.  Employers exempt from this fee include primary and secondary education institutions, institutions of higher education, and certain nonprofit entities.  This fee pays for U.S. citizens, lawful permanent residents, and other U.S. workers to attend job training and receive low-income scholarships or grants for math, engineering, or science enrichment courses administered by the National Science Foundation and the Department of Labor.

For purposes of clarification, the USCIS policy memorandum utilizes the definition of “affiliate” and “subsidiary” taken from the L-1 nonimmigrant regulations located at 8 CFR 214.2(l)(1)(ii).  An “affiliate” is clarified as: (1) “one of two subsidiaries both of which are owned and controlled by the same parent or individual” or (2) “one of two legal entities owned and controlled by the same group of individuals, each owning and controlling approximately the same share or proportion of each entity.”  The term “subsidiary” is also clarified to be the same as defined in the L-1 nonimmigrant context, where it is “a firm, corporation, or other legal entity of which a parent owns, directly or indirectly, half of the entity and controls the entity; or owns, directly or indirectly, 50 percent of a 50-50 joint venture and has equal control and veto power over the entity; or owns, directly or indirectly, less than half of the entity, but in fact controls the entity.”  8 CFR 214.2(l)(1)(ii).

The calculation is to be done by the adjudicating officer, who may use evidence including information in the petition, previous petitions, Form 10k, copies of corporate tax returns, or any public records.  Adjudicators are now tasked with implementing this and verifying that the calculations are correct so that the correct fee is submitted.

Greenberg Traurig will continue to monitor any developments related to the H-1B process.  For updates, please subscribe to our blog.

2017 AILA PERM/H-2B Practice Conference – Prevailing Wage Issues: Being Proactive Pays Off!

Posted in Events, H-2B

On August 18, 2017, Rosanna Fox, shareholder in the Immigration & Compliance Practice, spoke on a panel at the 2017 AILA PERM/H-2B Practice Conference, hosted by the American Immigration Lawyers Association, in Seattle, WA. The discussion was entitled “Prevailing Wage Issues: Being Proactive Pays Off!” In most PERM cases, obtaining the prevailing wage is the initial step in the process and must be done correctly the first time due to ever-increasing processing times. The speakers provided insight on how OFLC has been handling prevailing wage requests based on stakeholder meetings. They also addressed how to use current guidance to minimize uncertainty, and how to be proactive to avoid RFIs and other processing delays. For more information click here.

U.S. Mission in Russia to Temporarily Halt Visa Services

Posted in Immigrant Visa, Visas

On Monday, August 21, 2017, the U.S. Embassy in Moscow announced that starting August 23 all nonimmigrant visa operations across Russia will be temporarily suspended. The mission announced that it would recommence services in Moscow on Sept. 1, but visa operations at all other U.S. consular locations in Russia would remain on hold.

All visa appointments scheduled at this time will be cancelled and applicants will be provided instructions on how to reschedule. Additional information on appointment cancellations and rescheduling is provided on the U.S. Embassy’s website.

This announcement comes after Russia demanded that the U.S. mission reduce its staff by nearly two-thirds (from more than 1,200 to 455), to the same size as the Russian mission in the United States. In light of this reduction in staff, the mission has announced that staffing changes will also impact some immigrant visa applications. Further, the mission has announced that the U.S. Embassy in Moscow and the Consulate in St. Petersburg will no longer accept new visa applications for residents of Belarus. Residents of Belarus are encouraged to schedule visa appointments at the U.S. in Warsaw, the U.S. Embassy in Kyiv, or the U.S. Embassy in Vilnius.

The U.S. Embassy in Moscow and the three consulates in Russia will continue to provide the full range of American Citizen Services.

This announcement will likely lead to large delays for the thousands of Russians who apply for U.S. nonimmigrant visas each year. Senior Russian lawmakers on Monday suggested a parallel response that could impact Americans seeking Russian visas.

Greenberg Traurig will continue to monitor this diplomatic situation and will provide updates as they arise.

Emerging Trends: USCIS Challenging Level 1 Wages and Computer Programmer Occupational Classification for H-1B Petitions

Posted in H-1B, USCIS

Over the past several months, some trends have developed which pose challenges for employers taking part in the H-1B program: 1. the United States Citizenship and Immigration Service (USCIS) is issuing Requests for Evidence (RFEs) for H-1B petitions that challenge the H-1B position’s level 1 prevailing wage classification, the lowest permitted wage level for H-1B filings; and 2. USCIS is denying H-1B petitions for computer programmer-related assignments.

As background, H-1B petitions are reserved for highly-skilled foreign workers in specialty occupations that require at least a Bachelor’s degree (or its equivalent) in a specific field.  For a position to qualify as an H-1B specialty occupation, the position must meet one of the following criteria:

  1. The minimum entry requirement for the position must be a bachelor’s degree or higher, or its equivalent;
  2. The degree requirement for the position is common to the industry or the position is so complex or unique that it can only be performed by an individual with a degree;
  3. The employer normally requires a degree or its equivalent for the position; or
  4. The nature of the position’s duties is so specialized and complex that the knowledge required to perform the duties is usually associated with attaining a bachelor’s or higher degree.

To file an H-1B petition with USCIS, an employer must first obtain a certified Labor Condition Application (LCA) from the U.S. Department of Labor (DOL) that contains the H-1B job title, wage level, and location.  The wage level, which is split into four levels, is selected based on the job’s required education level and work experience.  Level 1—typically limited to those positions that require a Bachelor’s degree and fewer than two years of experience—commands the lowest wage rate, whereas Level 4—typically reserved for positions that require a Bachelor’s degree and at least 5 years of experience—commands the highest wage rate.  The wage rate is also affected by the occupational classification the sponsoring employer chooses for the H-1B position.  Certain computer-related occupational classifications, such as software developers, command a higher wage than other classifications, like computer programmers; however, the latter, according to USCIS, does not always require bachelor’s degrees for admission into the position.   In March 2017, USCIS issued a policy memorandum stating that positions using the computer programmer classification may not be indicative of a specialty occupation because some computer programmer positions do not require at least a Bachelor’s degree for admission into the field.  As a result, USCIS may deny H-1B petitions that rely on the classification of computer programmers if the sponsoring employer cannot show that the H-1B position qualifies as a specialty occupation.  Each of these emerging trends is discussed in greater detail below.

“Level 1” RFEs

Many of these “Level 1” RFEs are for H-1B petitions that were filed with USCIS under the H-1B Cap on April 1, 2017.  In these RFEs, USCIS asserts that the job description and supporting documents for the sponsored H-1B position are not supported by the level 1 wage details that are listed in the Labor Condition Application that was certified by the DOL. Specifically, USCIS notes that Level 1 wage rates are primarily “assigned to job offers for beginning level employees who have only a basic understanding of the occupation.” USCIS then challenges the sponsoring employer’s use of the level 1 wage based on a review of the employer’s position duties outlined in the H-1B petition, stating many of the duties outlined in the H-1B petition appear to require more than “a basic understanding of the occupation,” or involve more than “routine tasks that require limited, if any, exercise of judgment.” By invalidating the use of a level 1 wage on the LCA, USCIS is denying H-1B petitions with the assertion that the LCA does not sufficiently support the H-1B position.

When selecting a level 1 wage, sponsoring employers should be prepared to provide additional documentation or evidence to show that the H-1B position’s duties, while particularly complex and specialized so as to count as a specialty occupation, are normal for entry-level occupations within that field.  Evidence that the sponsoring employer normally requires at least a Bachelor’s degree or its equivalent for entry into the position can show to USCIS that the position is one that not only constitutes a specialty occupation as outlined by the H-1B regulations, but that level 1 wage, which is reserved for positions that require fewer than 2 years of experience for entry into the field, is justified.

Computer Programmer H-1B Denials

In March 2017, USCIS issued a policy memorandum specifically addressing the use of the occupational classification of computer programmers qualifying as a specialty occupation with H-1B petitions. In the policy memo, USCIS noted that sponsoring employers were no longer able to rely solely on the DOL’s Occupational Outlook Handbook (OOH),  to show that computer programmers typically have at least bachelor’s degrees for entry into the position.  In turn, sponsoring employers “must provide other evidence to establish that the particular position is one in a specialty occupation.” USCIS also calls into question whether a computer programmer position filed under a level 1 wage counts as a specialty occupation that requires at least a bachelor’s degree for entry into the position.  Because USCIS determined that a computer programmer position is not one that normally requires a bachelor’s degree for entry, and the level 1 wage is reserved for positions that require only “a basic understanding of the occupation,” USCIS asserts that a computer programmer position filed with an LCA for a level 1 wage cannot, by itself, qualify for an H-1B visa.

Employers should be prepared to provide additional evidence, particularly evidence of its own hiring practice, to show that the company requires, at a minimum, a bachelor’s degree for admission into the position.

Additionally, the Administrative Appeals Office (the USCIS unit to which employers may appeal denied H-1B petitions as well as other nonimmigrant and immigrant classifications) is affirming the vast majority of computer programmer-related appeals following the issuance of the USCIS policy memorandum. Appeals decisions can be found on the USCIS website.

Global Entry Now ‘Trusts’ Certain Travelers from Colombia, Singapore, and Switzerland

Posted in Travel

Citizens of Colombia, Singapore, and Switzerland may now apply for Global Entry, the U.S. Customs and Border Protection (CBP) “trusted traveler” program that provides expedited entry through U.S. immigration inspection via automatic kiosks at select airports. All Global Entry applicants submit to a comprehensive background check as well as an in-person interview before being accepted into the program.

Colombia, Singapore, and Switzerland join India, the United Kingdom, Germany, Panama, South Korea, and Mexico as countries that have arrangements with CBP regarding international trusted traveler programs, thus allowing their citizens to apply for Global Entry. Canadian citizens who are members of the Canadian trusted traveler program, NEXUS, are also eligible for Global Entry.

Global Entry members who are neither U.S. citizens nor U.S. permanent residents are reminded to update CBP with their visa information. If the visa information in the Global Entry account is incorrect, the Global Entry kiosk may admit the traveler in the wrong visa classification and/or incorrectly calculate the traveler’s I-94 expiration. To add or update visa information to their Global Entry account, travelers must visit a Global Entry enrollment center in person; visa updates cannot be completed online. For more information, please contact your GT attorney.

DOL Proposes New LCA, H-1B Complaint Form

Posted in Department of Labor, H-1B

Following through on its April 3, 2017, announcement that it was considering changes to the Labor Condition Application (LCA), the Department of Labor (DOL) published a notice in the Federal Register on August 3, 2017, of its proposed revisions to the ETA 9035 or LCA. A certified LCA must be included with every H-1B petition filed with the U.S. Citizenship and Immigration Services.  DOL’s Employment and Training Administration posted the proposed LCA on its website saying the changes would “better protect American workers, confront fraud, and increase transparency.” DOL said it would accept comments until Oct. 2, 2017.

The revisions in the form reflect the focus of the Trump Administration on increased enforcement of third-party placement and on H-1B dependent employers. The new LCA asks whether the sponsored worker will be “placed with a secondary employer” and, if yes, asks for the legal name of the secondary employer. The new LCA also requires H-1B dependent employers to complete an additional list of questions set out in an appendix if the sponsored worker is exempt from H-1B dependency obligations. In addition, the attestation language in the form is more expansive. For example, the wage attestation in the new LCA specifies that employers may not deduct attorneys’ fees or costs in connection with a visa petition.

At the same time it released its new LCA form, the DOL also posted its revised WH-4, Nonimmigrant Worker Information Form, which is the form individuals may use to submit complaints to DOL about fraud or misconduct in H-1B, H-1B1 or E-3 visa programs. This form is utilized by DOL’s Wage and Hour Division, which is the office that conducts LCA audits.

September 2017 Visa Bulletin Update

Posted in China, EB-3, Mexico, Philippines, U.S. Department of State (DOS), USCIS, Visa Bulletin

The Department of State (DOS) recently released the September 2017 Visa Bulletin.  The charts show movement in some employment-based categories, with no movement in other employment-based visa categories. According to the September Visa Bulletin, the following are updates to Final Action Dates:

EB-1: The Worldwide EB-1 category for India and China remains stalled at Jan. 1, 2012, while the other categories are current.

EB-2: The cutoff date for worldwide chargeability in the EB-2 category moved from April 1, 2015, to Jan. 1, 2016, with the same movement for El Salvador/Guatemala/Honduras, Mexico, and the Philippines. India EB-2 has moved forward by one month to August 22, 2008, and EB-2 for China moved by almost one month to May 15, 2013.

EB-3:  In the EB-3 category, the cutoff date for worldwide chargeability remains current; as are the El Salvador/Guatemala/Honduras and Mexico categories. The cutoff date for mainland China remains stalled at Jan. 1, 2012. The Philippines moved five months, to Nov. 1, 2015. India moved three months, from July 15, 2006, to Oct. 15, 2006.

For those in the EB-5 category, the priority date remains current for all applicants other than those born in mainland China, where the cutoff date has not moved and remains at June 15, 2014.

For those seeking to adjust status, The United States Citizenship and Immigration Service (USCIS) website indicates that the Department’s Application Final Action Dates chart must be used for filing Form I-485. This has not yet been updated with the August 2017 dates; however, we anticipate that USCIS will continue to follow Application Final Action Dates for August as it has to date.

Final Action Dates for Employment-Based Cases

Dates for Filing Employment-Based Visa Applications

Arizona, Maryland, and Wyoming To Participate in E-Verify Ride Program

Posted in Driver’s License, E-Verify, USCIS

As of July 31, 2017, Arizona, Maryland, and Wyoming are official participants in the federal government’s E-Verify enhancement program, RIDE.

The Record and Information from DMVs for E-Verify (RIDE) verifies the validity of state-issued driver’s licenses and ID card information by matching data entered by employers into E-Verify against state departments of motor vehicles records. This partnership enables E-Verify to validate the authenticity of state-issued driver’s licenses and state ID cards when provided by an employee to prove identity when completing the I-9 process.

According to USCIS, approximately 80 percent of all documents presented by employees as proof of identity during the I-9 process are driver’s licenses or ID cards. Further, USCIS states that the RIDE program helps to reduce document employment eligibility verification fraud in E-Verify.

Ten states currently participate in the RIDE program (Arizona, Florida, Idaho, Iowa, Maryland, Mississippi, Nebraska, North Dakota, Wisconsin, and Wyoming). While the RIDE program has grown slowly over the past six years, continued adoption of mandatory E-Verify use suggests further expansion of the RIDE program in years to come.

Employers participating in E-Verify will now be prompted to enter document information, which will be verified against state records, when presented with a state driver’s license or ID card (from the above listed states) as a List B document. For example, if an employer in Georgia who uses E-Verify is presented with a driver’s license from Wyoming as a List B document, E-Verify will prompt the employer for additional information. Fact Sheets for each state participating in the RIDE program can be found on the USCIS website.

Employers are reminded that this update will only impact newly hired employees in those states now participating in the RIDE program.  Employers must not use E-Verify to verify existing employees (with the exception of federal contractors).

President Trump Endorses New Bill Addressing ‘Green Card’ Immigration

Posted in Green Card, Immigration Law, President Trump's Administration, USCIS

Today, President Trump joined Senator David Perdue (R-GA) and Senator Tom Cotton (R-AR) announcing the introduction of a bill titled “Reforming American Immigration for a Strong Economy Act,” known also as the “RAISE Act.”  The president praised the work of the senators and in a statement added, “We want a merit-based system. One that protects workers, our workers, our taxpayers, and one that protects our economy. We want it merit-based.”

Highlights from the bill are included below:

  • Eliminates the diversity visa program.
  • Sets the maximum number of refugee admissions to 50,000 per fiscal year.
  • Worldwide level of family sponsored immigrants is 88,000. The number of humanitarian paroles, if the individual has not departed or has not adjusted status, will be counted against that number.
  • A new classification is created for the alien parents of adult U.S. citizens for admission for five years, but will not be able to receive public benefits or work authorization.
  • A person cannot naturalize if the person who executed an affidavit of support failed to reimburse the Federal Government for all mean-tested public benefits received by the person during the 5-year period.
  • Annual and quadrennial reports will be required to monitor the progress and numbers.
  • The creation of an immigration points system to replace the employment-based immigrant visa categories.
  • Effective date will be the first day of the first fiscal year that begins after the date of enactment.  Those exempt are those who have been granted admission prior to enactment, but he or she will need to enter within one year of enactment.

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