A Win for H-1B Companies in the IT Third-Party Placement Industry

In a decision issued March 10, 2020, the U.S. District Court for the District of Columbia rejected U.S. Citizen and Immigration Services (USCIS) policies against H-1B visa holders. The issue was the sequence of memoranda and policy implementation by USCIS during the last 10 years the court considered unlawful as it has no basis in agency regulation or in the Immigration and Naturalization Act (INA).

Following the ITServe Alliance, Inc. v. Cissna decision, USCIS agreed to a settlement with ITServe Alliance reversing USCIS policy on two issues that previously resulted in H-1B denials:

The Employer-Employee relationship: The court found the limited meaning of “employer-employee relationship” as announced and implemented by USCIS’ 2018 Policy Memorandum is inconsistent with the longstanding Immigration and Naturalization Service (INS) 1991 regulation. USCIS’ interpretation required the employer list the H-1B visa holder’s day-to-day tasks in such detail that few employers could satisfy this threshold. This interpretation mostly affected IT companies placing their H-1B workers at third-party worksites. The regulation specifies the employer may “hire, pay, fire, supervise, or otherwise control the work of any such employee…” (emphasis added). The court ruling clarifies the use of “or” in the regulation allows a single listed factor can establish the requisite “control” to demonstrate an employer-employee relationship.

In the settlement, USCIS agrees it will not apply its interpretation of the current regulatory language, see Neufeld Memo 2010 and 2018 Contract and Itinerary Memorandum, but rather, use common law in the required analysis of the employer-employee relationship.

Proof of non-speculative work assignments, itineraries and short approvals: The court found USCIS’ application of the regulations is arbitrary and capricious, requiring contracts or other corroborated evidence of dates and locations of temporary work assignments for three future years. See 2018 Contract and Itinerary Memorandum. As a result of this policy, USCIS had increasingly been granting shorter validity periods than the three years requested in the H-1B petitions. In its ruling, the court recognizes under the American Competitiveness and Workforce Improvement Act of 1998 (ACWIA), employers could retain an H-1B employee during “nonproductive” periods as long as the company paid the H-1B visa holder.

In the settlement, USCIS is required to rescind “in its entirety within 90 days” the 2018 Contract and Itinerary Memorandum. The court’s decision stated this memorandum introduced a practice of granting visa petitions for IT consultants for less than three years, which represented a change after decades of past practice, making USCIS’s actions arbitrary and capricious. As such, per the settlement agreement, “USCIS will not issue approvals for H-1B petitions with validity periods shorter than the time period requested by the H-1B petitioner, unless such decisions include or are accompanied by a brief explanation as to why the validity period has been limited…”

Although the settlement does not require USCIS to review past H-1B decisions, it may make the preparation of H-1B petitions less burdensome for IT employers with third-party placements in the future.

U.S.-Canada and U.S.-Mexico Border Closures Extended

By Caterina Cappellari on May 20, 2020 Posted in Adjustment of Status, Canada, Canada Border Services Agency, Closures, Compliance, Coronavirus, COVID-19, Customs and Border Protection, Department of Homeland Security, DHS, Temporarily Suspend, U.S. Customs and Border Protection, U.S. Customs and Border Protection (CBP)

The Department of Homeland Security announced the extension of restrictions along the U.S.-Canada and U.S.-Mexico borders. Restrictions to non-essential travel, including tourism and recreational travel, were initially implemented March 21, 2020, due to the COVID-19 pandemic. In a statement on May 19, 2020, Acting DHS Secretary Wolf said, “Non-essential travel will not be permitted until this administration is convinced that doing so is safe and secure.” The current extension is effective until June 22, 2020.

USCIS Adopts AAO Decision Clarifying Foreign Entity Requirement in Multinational Manager/Executive Immigrant Petitions

By Sarah E. Amendola on May 16, 2020 Posted in AAO, Administrative Appeals Office, Foreign Entity Requirement, USCIS

On May 13, 2020, United States Citizenship and Immigration Services (USCIS) announced the adoption of a May 5, 2020, Administrative Appeals Office (AAO) decision, Matter of F-M- Co., making it formal policy guidance for the adjudication of similar future cases.

Matter of F-M- Co. addresses the employment-based immigrant first preference multinational executive or manager classification and clarifies two key points about the interpretation of applicable criteria. Per the Immigration and Nationality Act section 203(b)(1)(C), 8 U.S.C. § 1153(b)(1)(C), a multinational executive or manager is one who “seeks to enter the United States in order to continue to render services to the same employer or to a subsidiary or affiliate thereof in a capacity that is managerial or executive.”

Firstly, in Matter of F-M- Co., the AAO reaffirmed USCIS’ longstanding interpretation of the rule requiring that the relationship between the foreign entity and the U.S. petitioner must exist at the time of filing the petition and throughout the pendency of the case; the relationship must exist for the beneficiary to be able to “continue to render services” to the same or related employer. This finding is also in line with the benchmark requirement for immigration petitions at 8 C.F.R. § 103.2(b)(1), that eligibility for the benefit sought must exist at the time of filing and throughout the adjudication of the case.

Secondly, the AAO offered some leniency for petitioners in concluding that while the foreign entity must continue to exist and do business, it does not need to be “in the exact legal form” in which it operated as when the beneficiary was employed. The AAO determined that in the event of a corporate reorganization, a successor-in-interest relationship between the former foreign entity and a new one could be sufficient to meet the requirements of the regulations. The petitioner must show that “the beneficiary’s qualifying foreign employer continues to exist and do business through a valid successor entity.” Relevant factors for successor-in-interest determinations include the transfer of rights, duties, obligations, and ownership of the prior entity.

Although such arguments could have been successful in the past to show that the foreign entity exists through a successor-in-interest, it was up to the discretion of the adjudicator. Now, with the adoption of Matter of F-M- Co. as USCIS policy guidance, employers in such circumstances may be better situated with more regularity in future cases.

FORM I-9 ANNOUNCEMENT: Temporary Policy for List B Identity Documents Amid COVID-19

By Kristin Bolayir* on May 12, 2020 Posted in Coronavirus, COVID-19, Form I-9, Temporary Policy for List B Identity Documents, Uncategorized

COVID-19 stay-at-home orders have created challenges for employees seeking to renew a driver’s license, a state ID card, or other Form I-9, Employment Eligibility Verification, List B identity document, as there are some restrictions on online renewal services.

Given these challenges, the Department of Homeland Security (DHS) 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.

List B Documents that have not been extended by the issuing authority

Pursuant to the DHS temporary policy, employers should take the following action when an employee provides an acceptable expired List B document that has not been extended by the issuing authority:

Record the document information in Section 2 under List B, as applicable; and,
Enter the word “COVID-19” in the Additional Information Field.

For expired documents, the employee must present, within 90 days after DHS’s termination of this temporary policy, a valid unexpired document to replace the expired document presented when they were initially hired. According to DHS, the employee would ideally present the replacement of the actual expired document, but the employee also has the option of choosing a different List A or List B document or documents and record the new document information in the Additional Information Field.

Employers should complete the following in the Section 2 Additional Information Field when the employee later presents an unexpired document:

Record the number and other required document information from the actual document presented;
Initial and date the change.

List B Documents that have been extended by the issuing authority

If the issuing authority has extended the document expiration date due to COVID-19, and the employee’s List B identity document expired on or after March 1, 2020, the document is acceptable as a List B document for Form I-9 (not as a receipt) during the extension timeframe specified by the issuing authority.

Employers should take the following action when an employee presents an acceptable List B document that has been extended by the issuing authority:

Enter the document’s expiration date in Section 2; and
Enter “COVID-19 EXT” in the Additional Information Field.

Employers can confirm that their state has auto-extended the expiration date of the state IDs and driver’s licenses by checking the Motor Vehicle Administration or Department of Mort Vehicles’ website. Employers may choose to attach a copy of the webpage or other notice indicating that the issuing authority has extended the documents.

For extended documents, the employee is not required to later present a valid unexpired List B document.

Employers that participate in E-Verify should use the employee’s List B document number from Section 2 of the Form I-9 to create an E-Verify case within three days of the hire date.

DHS continues to monitor the ongoing COVID-19 national emergency and will provide updated guidance as neede

Senators Urge President Trump to Restrict Guest Worker Programs

By Kristin Bolayir* on May 8, 2020 Posted in Coronavirus, COVID-19, EO, Guest Worker Programs, OPT, Uncategorized

On May 7, 2020, four U.S. senators wrote a letter to President Trump, requesting that he suspend “all new guest worker visas” for 60 days, and others for a year “or until unemployment has returned to normal levels.” The requested changes to the guest worker program come amid all-time high unemployment in the United States due to the COVID-19 pandemic.

The senators, who include Tom Cotton (R-Arkansas), Josh Hawley (R-Missouri), Ted Cruz (R-Texas), and Chuck Grassley (R-Iowa), argue the Presidential Proclamation issued April 22, 2020, which suspended entry of certain immigrants to the U.S. for 60 days, did not go far enough. The Presidential Proclamation became effective April 23, 2020. Although this 60-day moratorium on immigration was limited to immigrant visas for applicants outside the United States, there was an expectation when it was issued that the Trump administration planned on releasing a second executive order or proclamation centered around non-immigrant visas, since the proclamation included language giving the president and relevant agencies 30 days to review non-immigrant programs.

The letter urges the president to expand his Executive Order and impose additional restrictions on U.S. guest-worker programs. Specifically, the letter requests that the administration halt all new guest-worker visas for 60 days, after which time the senators say the president should continue to suspend new non-immigrant guest-worker visas for a year or until national unemployment figures bounce back to “normal levels.” Among the visas they would like to suspend are H-2Bs, which allow non-agricultural seasonal workers into the United States; H-1Bs, which are for highly skilled applicants in specialty occupations; and the Optional Practical Training (OPT) program, which extends foreign student visas for one to three years after graduation and allows for work authorization during that time. The senators also request that President Trump immediately suspend, or at least until reforms are adopted, EB-5 visas – a program by which an immigrant can become a green-card holder by investing in a qualified business in the United States.

While a second directive has not yet been announced regarding non-immigrant visas, the administration and relevant agencies have 30 days from the issuance of the Proclamation to review these programs.

USCIS Extends Relief Measure For Employers Responding to RFEs and NOIDs

By Sarah E. Amendola on May 3, 2020 Posted in NOID, NOIR, NOIT, RFE, USCIS

United States Citizenship and Immigration Services (USCIS) issued an alert on May 1, 2020, that the agency will be further extending the duration of the dates covered under its announcement on March 30, 2020. As we previously reported, USCIS implemented a policy to allow employers who have received a Request for Evidence (RFE), Notice of Intent to Deny (NOID), Notice of Intent to Revoke (NOIR), Notice of Intent to Terminate (NOIT), or appealable decision issued between March 1 and May 1, 2020, an additional 60 calendar days to submit a response beyond the deadline set forth in the notice. Now, USCIS has extended this measure to apply to the aforementioned agency requests issued through July 1, 2020.

May 2020 Visa Bulletin Shows Significant Advancement

By Sarah E. Amendola on April 24, 2020 Posted in Department of State, EB-1, May visa bulletin, Uncategorized, USCIS, Visa Bulletin

The Department of State (DOS) May 2020 Visa Bulletin shows major advancements for some employment-based categories. Most notably, the final action date for EB-1 “all other” countries is current for the first time since July 2018. Also jumping to current from the final action of June 1, 2019, per last month’s visa bulletin, are EB-1 El Salvador, Guatemala, Honduras, Mexico, the Philippines, and Vietnam. The designation of “current” as a final action date means that the number of green cards authorized to be issued annually and allocated by category are not being fully utilized.

Within the United States, adjustment of status applications can be submitted to United States Citizenship and Immigration Services (USCIS) based on a current final action date; filing date designations are rendered obsolete in such instances.

While the filing dates for EB-1 progressed more than expected at the start of the government fiscal year in October 2019, signifying a relative reduction in demand, this current advancement is also a result of the suspension of green card and immigrant visa processing at consular posts abroad due to COVID-19. Moreover, in response to COVID-19, USCIS has suspended some in-person processes that could delay green card issuance, in addition to increasing the adjudication timeframes for the petitions that are the underlying basis for green card eligibility. The effects of these COVID-19 measures are twofold: the same occurrences that contributed to green cards being available is also hindering the issuance of them.

Additional changes from the May 2020 visa bulletin to highlight include EB-5 India final action date advancing from January 1, 2019 to October 1, 2019 and EB-5 China final action date advancing to July 1, 2015.

Regarding other categories, there was little movement for the final action dates for EB-1 China and India, and no movement in their filing dates. EB-2 China and India final action dates each advanced one month and kept the same filing dates. EB-3 China advanced one month and EB-2 India advanced two months, with no movement in their filing dates.

May 2020 Final Action Dates for Employment-Based Preference Cases:

Covid-19 Immigration Update: CBP extends the closure of certain enrollment centers for the Trusted Traveler Program

By Cole F. Heyer on April 23, 2020 Posted in CBP, Coronavirus, COVID-19, TPS, Trusted Traveler Program, U.S. Customs and Border Protection

U.S. Customs and Border Protection (CBP) announced on April 22, 2020 that it will extend the temporary closure of the Trusted Traveler Programs (TTP) through June 1, 2020, with extended closures possible due to the Covid-19 pandemic. Due to the suspension of the TTP, CBP will close all of the following enrollment centers:

Global Entry, including mobile enrollment events
NEXUS
SENTRI
FAST

All applicants who have been conditionally approved will need to reschedule their interview for after June 1, 2020.

The Temporary closure of the TTP will not affect CBP’s Enrollment on Arrival program; as such, Global Entry applicants who arrive into the United States on an international flight can complete the enrollment process with CBP at any of the 60 airports across the United States that offer this program.

Finally, due to the Covid-19 pandemic, CBP has extended the duration of how long a TTP application remains active to 485 days from the date the applicant completes the enrollment process. CBP also increased the application renewal period for current TTP members to 18 months to all current members to apply for renewal well in advance of their current TTP membership expiration.

GT will continue to monitor this developing situation with the Trusted Traveler Program. Please contact your attorney if you have additional questions.

President Trump Issues Proclamation Suspending Entry of Immigrants into the United States

By Kristen W. Ng on April 22, 2020 Posted in Coronavirus, COVID-19, EO, Executive Order, Suspending Entry of Immigrants

On April 22, 2020, President Trump issued a Proclamation that will come into effect April 23, 2020, which suspends the entry of those seeking to immigrate into the United States. The reasoning behind the issuance of this Proclamation is to not burden the American economy and the healthcare system while it is recovering from Coronavirus Disease 2019 (COVID-19) and to protect U.S. workers. Lawful Permanent Residents have “open market” employment authorization that allows them to work at any job, and this Proclamation is to limit temporarily the number of immigrant visas issued.

President Trump, through the Proclamation, declares the following:

Effective Date:

The Proclamation will be effective as of 11:59pm, April 23, 2020.

Application:

1 – The immediate suspension of immigrants entering the United States who are outside the United States, do not have an immigrant visa valid as of the effective date, and do not have an official travel document that was valid that permits entry into the United States.

2 – The Proclamation will not apply to the following: those who are lawful permanent residents; any person seeking to enter the United States as a physician, nurse, or other healthcare professional, or in healthcare position related to combatting COVID-19; any person entering the United States as an immigrant pursuant to the EB-5 program; any person who is the spouse of a U.S. citizen; any person who is under 21 and is the child of a U.S. citizen; any person whose entry would further U.S. law enforcement objectives; any member of the U.S. Armed forces (along with spouse and children); or any person whose entry would be in the national interest.

President Trump Announces Suspension of Immigration Due to COVID-19, Details Not Yet Available

By Cole F. Heyer on April 21, 2020 Posted in Coronavirus, COVID-19, Executive Order, Suspension of Immigration, Temporarily Suspend

Late on April 20, President Trump tweeted his intention to issue an Executive Order (EO) that “temporarily” suspends immigration into the United States. The proposed suspension may be issued in two EOs that address the following:

60-day travel ban EO: The first EO may consist of a 60-day ban on the issuance of immigrant visas, with carveouts for immigrant visas for immediate family members of U.S. citizens. This 60-day travel ban EO may not address the issuance of non-immigrant visas, including temporary employment visas
Non-immigrant visa EO: The second EO may address the issuance of non-immigrant visas. The specific duration of this travel ban is not yet known, but it may be in effect for a 90-day period.

The EOs could follow the same framework as the previous travel bans issued by President Trump, including iterations of the 2017 travel ban, and the recent travel bans concerning countries that are hit hardest by Coronavirus Disease 2019 (COVID-19), such as China and the Schengen area countries. The proposed EOs could run for an initial validity period — potentially 60 to 90 days — and may bar the admission of all foreign nationals seeking entry into the United States, while providing certain exceptions to lawful permanent residents (green card holders), and immediate family members of U.S. citizens who also possess immigrant visas.

President Trump’s authority to issue an immigration travel ban is outlined in Section 212(f) of the Immigration and Nationality Act, which states that “whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he deems necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.”

Though the president does not have absolute authority to ban all foreign national travelers into the United States for any reason, the United States Supreme Court has recognized the president’s authority to suspend immigration into the United States for a class of aliens, or all aliens for that matter, if the president finds that their entry into the United States would be detrimental to the United States. While little is known about the substance and scope of the proposed EOs that President Trump will issue, or when the EOs will be issued, his authority to issue the travel ban may be upheld on grounds of public health and protection of the U.S. economy and American workforce from rising unemployment.

The following questions are outstanding at this time:

How long will the EOs remain in effect, once signed? Based on prior travel bans, the proposed EOs could have an initial effective period of 60 to 90 days.
Who will be affected by the proposed EOs? The proposed EOs may match previous travel ban EOs; U.S. citizens and lawful permanent residents (green card holders) may be exempted from the proposed EOs and allowed to enter the United States. However, the proposed EOs could impose a broader travel restriction for foreign nationals who hold temporary non-immigrant visas, such as B-1, H-1B, or L-1 visas, and foreign nationals who hold immigrant visas. Foreign nationals outside the United States may be required to remain abroad until the travel ban expires or is lifted.
Will the proposed EOs affect foreign nationals who are already physically in the United States on non-immigrant visas? With President Trump’s previous travel ban EOs, foreign nationals who were already in the United States at the time the travel bans were issued were not required to leave the United States or cease working, if they were on a temporary employment visa. The proposed EOs may follow this same framework by allowing foreign nationals in the United States to remain, and importantly, continue working if on a temporary employment visa. There is some speculation that H-1B dependent employers will need to re-certify that this H-1B worker will not displace a U.S. worker.
Will the proposed EOs affect immigration filings pending with the U.S. Department of Labor (PERM/labor certifications) or the U.S. Citizenship and Immigration Services (USCIS)? At this time, no guidance is available as to whether the DOL or USCIS will continue processing pending cases. The DOL and USCIS may increase audits or requests for evidence concerning those applications that involve green card sponsorship as a measure to protect the U.S. economy and the American workforce.
Will the EOs affect foreign-national students applying for F-1 student visas? The EOs may have an impact on foreign nationals applying for F-1 student visas. Specifically, foreign-national students applying for F-1 student visas to enter the United States to attend university may experience delays to secure an F-1 visa appointment at U.S. Embassies and Consulates due to appointment backlogs created by COVID-19. Universities in the United States may decide to implement remote study options or delay the start of the Fall 2020 semester until later in the academic year.

President Trump may issue and sign the proposed EOs this week. Companies may consider continuing to prepare and file temporary employment visa extension cases with USCIS. Both the DOL and USCIS have indicated over the last several weeks that their offices will remain open and process cases as normal despite COVID-19.

U.S. Embassies and Consulates may remain closed or suspend visa appointments for a temporary period — potentially an initial period of 60 to 90 days — once the proposed EOs are issued and signed by President Trump.