USCIS’ Policy Memorandum on ‘Revised Interview Waiver Guidance for Form I-751, Petition to Remove Conditions on Residence”

Posted in Form I-751

USCIS’s Policy Memorandum on ‘Revised Interview Waiver Guidance for Form I-751, Petition to Remove Conditions on Residence” went into effect on Dec. 10, 2018. The memorandum fully replaces the June 24, 2005, “Revised Interview Waiver Criteria for Form I-751, Petition to Remove the Conditions on Residence.” These guidelines apply to I-751 cases filed as a joint petition or as a waiver of the joint filing requirement. Per the new memorandum, an officer may consider waiving an interview if they are satisfied that:

  • They can make a decision because the record contains sufficient evidence about the bona fides of the marriage (that the marriage was not entered into in order to evade U.S. immigration laws);
  • USCIS has previously interviewed the principal petitioner (for forms filed on or after Dec. 10, 2018);
  • There is no indication of fraud or misrepresentation in the Form I-751 or the supporting documentation; and
  • There are no complex facts or issues that require an interview to resolve.

For more on USCIS Policy Memorandums, click here.

Notice of Proposed Rule for H-1B Cap Season: Summary and Real-World Implications

Posted in Department of Homeland Security, H-1B, H-1B Cap, USCIS

On Nov. 30, 2018, the Department of Homeland Security issued the notice of proposed rulemaking to amend its H-1B cap-subject lottery process that USCIS conducts every year. The proposed rule seeks to amend the way H-1B cap-subject petitions are submitted for the lottery, and also the way H-1B cap-subject petitions are randomly selected. USCIS proposes a 30-day comment period that makes comments due on the proposed rule by or on Jan. 2, 2019. As of this writing, no group has formally requested an extension of the comment period, although it is widely believed that interested parties will request an extension of comment time. An extension, if granted, would lengthen the regulatory process time and make implementation by Q2 2019 (as stated) uncertain. As such, it is unclear whether this rule can be implemented for the H-1B cap season beginning April 1, 2019, for fiscal year 2020.

Background

The government’s fiscal year begins each year on Oct. 1. The soonest an H-1B petition can be filed is 180 days prior to the start date, and as Oct. 1 is the first possible start date, the petition cannot be filed until April 1 of each year, hence the H-1B lottery “opening” every year for filing. The H-1B cap each year allows for 20,000 slots for those who have a U.S. Master’s degree (or higher), and another 65,000 for everyone else. If USCIS receives more than 85,000 total petitions on April 1, it will conduct a random lottery to first select the 20,000 petitions that fall under the Master’s degree cap, then conduct a second lottery to select the remaining 65,000 numbers. In years past, the following number of petitions have been received*:

Year Number of H-1B cap subject petitions received
2017 198,460
2016 236,444
2015 232,973
2014 172,581
2013 124,130

*Courtesy of DHS

The proposed changes will alter the manner H-1B cap-subject petitions are received, and the way they are counted, as explained below:

Electronic Pre-registration

The proposed rule will change the way H-1B petitions are filed. Instead of employers and/or their attorneys submitting an H-1B petition for every beneficiary, USCIS is proposing that employers first electronically register with the agency. Under the proposed rule, there would be a designated registration period before the petitions can be received. Once all employers electronically register the beneficiaries for which they wish to file H-1B petitions, USCIS will run a lottery system to meet the cap if the number exceeds 85,000. If the number of electronic preregistrations does not reach 85,000, USCIS will notify all petitioners that they may file the petitions. Otherwise, if USCIS runs a random lottery on the pre-registered names, petitioners will be notified whether their names have been selected and whether they may file H-1B petitions within a designated time frame.

Running the Lottery

In previous years, the lottery was conducted first for all U.S. Master’s degree (or higher) recipients to meet the 20,000 quota. After the Master’s cap lottery was run, USCIS would move the remaining U.S. Master’s petitions with all other petitions to select the remaining 65,000 petitions. USCIS is now proposing that through the electronic preregistration, the 65,000 “all” petitions lottery would be run first; then, to select the 20,000 Master’s petitions quota, only the remaining U.S. Master’s petitions would be run. USCIS reasons that this will give U.S. Master’s petitions a higher likelihood of being selected.

DHS also proposes to include a severability clause, where DHS would be able to implement either the electronic pre-registration or change how the lottery is run, independently, if they cannot be done together for any reason.

Implications

What does this mean for employers, USCIS, and law firms? For USCIS and employers, this proposal will drastically cut legal fees and costs. Petitioners will only be filing petitions that have already been “pre-selected,” and USCIS will not be returning a hundred thousand petitions, or more, by U.S. Postal Service. Employers will also be able to make alternate plans for their employees at an earlier date because the electronic lottery will be faster, instead of waiting until well into summer for a petition to come back as not selected in the lottery. Law firms will also be able to plan better for their clients in terms of alternative work authorization paths, should the petitioner not be selected in the electronic lottery.

It is unclear how long the processes will last, including the electronic pre-registration period, the selection period, or the filing period for selected beneficiaries. The proposed rule states that the filing period for H-1B cap-subject petitions will be at least 60 days. Greenberg Traurig will continue to monitor news in this area.

Greenberg Traurig’s Laura Reiff and Martha Schoonover Listed as 2018 Washingtonian Top Lawyers

Posted in Awards & Recognitions

Laura Foote Reiff and Martha J. Schoonover, shareholders in global law firm Greenberg Traurig LLP’s Northern Virginia office, were again listed in Washingtonian magazine’s 2018 “Top Lawyers” list. They are recognized in the magazine for their immigration work and will be featured in the Dec. 2018 issue.

According to the Washingtonian, this biennial list features approximately 700 attorneys across 21 practice areas. The list is compiled through research and nominations vetted by the publication’s editorial staff.

To read the full press release, click here.

DOL Implements New LCA Form Effective Nov. 19, 2018

Posted in H-1B, LCA, Non-Immigrant Visas, U.S. Department of Labor, Uncategorized, Visas

The Labor Condition Application (LCA) Form, ETA 9035, is a required form for non-immigrant visa categories including the H-1B, H-1B1 (Chile/Singapore) and E-3 (Australia). Pursuant to The Department of Labor’s plans to better protect American workers, confront fraud, and increase transparency, a new version of the LCA form took effect on Nov. 19, 2018. This form includes several new key revisions: (1) Disclosing all places of employment for H-1B workers, including periods of short duration; (2) Providing the estimated number of H-1B workers at each place of intended employment; (3) Requiring the clear identification of secondary entities who are using H-1B workers; and (4) Requiring H-1B dependent employers who are claiming an exemption solely on the basis of education, such as a master’s degree, to provide documentation of the degree. It is recommended that all U.S. employers revisit and review their contracts in place for third-party placement of their own employees as well as their vendor agreements, which may place workers at their work locations.

The new LCA form and instructions are available here.

 

December 2018 Visa Bulletin Updates

Posted in EB-1, EB-2, EB-3, EB-5 Program, U.S. Department of State (DOS)

The Department of State (DOS) December 2018 Visa Bulletin shows some movement in employment-based categories. The EB-1 category will advance three months in all countries, with China and India advancing to Sept. 1, 2016, and all other countries will move forward to July 21, 2016. The EB-2 category remained current for all countries except China, advancing to July 1, 2015, and India, advancing to April 1, 2009. Although most countries will remain current in the EB-3 category, China will advance by one week to June 8, 2015, India will advance by two months to March 1, 2009, and the Philippines will advance by one week to June 15, 2017. As mentioned in our previous blog post, the EB-3 India final action date moved very rapidly over the past year, advancing almost a year and a half. Current demand projections make it likely that EB-3 India could surpass EB-2 India at some point this fiscal year. As noted above, India will advance two months in the EB-3 category in December. GT will be closely monitoring these advancements as they unfold.

Referring to the Final Action Dates, following are updates from the September Visa Bulletin:

EB-1: Mainland China and India will advance, with a cutoff date of Sept. 1, 2016, while El Salvador/Guatemala/Honduras, Mexico, Philippines, and Vietnam all moved forward to July 1, 2017.

EB-2: For the cutoff date for worldwide chargeability, El Salvador, Mexico, Philippines, and Vietnam are all now current. Mainland China will move to July 1, 2015; India had slight movement to April 1, 2009.

EB-3: In the EB-3 category, for the worldwide chargeability, El Salvador/Guatemala/Honduras cutoff is Feb. 22, 2016, Mexico will move to Jan. 1, 2017, and all other countries will remain current.

For those in the EB-5 category, the priority date remains current for all applicants other than those born in Mainland China and Vietnam, where the cutoff for China will advance slightly to Aug. 22, 2014, and for Vietnam it will advance significantly to May 1, 2016.

For those seeking to adjust status, The United States Citizenship and Immigration Service (USCIS) website indicates that the department’s Dates for Filing chart must be used for filing Form I-485. This is generally not the case, as USCIS usually requires that applicants use the “Application for Final Action Dates,” which typically reflects earlier cutoff dates than that “Dates for Filing” chart.

Referring to the Final Action Dates, following are updates for the December Visa Bulletin:

Final Action Dates for Employment-Based Preference Cases

Dates for Filing of Employment-Based Visa Applications

 

USCIS Continues to Increase Number of RFEs and Denials Issued

Posted in H-1B, L-1, RFE, USCIS, Visas

Since President Trump issued his “Buy American and Hire American” Executive Order in April 2017, USCIS has been issuing Requests for Evidence (RFEs) at unprecedented rates. While the H-1B visa category was specifically targeted as one requiring stricter scrutiny and reform efforts, USCIS has also focused on other visa types for significant adjudication and approval changes. However, the underlying visa criteria and relevant immigration regulations have remained the same, signifying no controlling or concrete legal basis for the increase in RFEs and even denials.

The H-1B RFE trend appears to be the most pervasive given the following:

  • For fully adjudicated cases, RFEs were issued for 69 percent of H-1B petitions in Q4 FY 2017 (which began on July 1, 2017) versus for 23 percent of the petitions in Q3
  • 28,711 RFEs were issued in Q3 for 169,785 H-1B petitions USCIS received and 63,184 RFEs were issued in Q4 for 71,911 H-1B petitions received

The American Immigration Lawyers Association (AILA) reports that members are experiencing the same increased RFE rates for H-1B petitions in FY 2018, although official statistics have not yet been released.

The L-1 Trend

While the RFE rate for L-1 petitions has remained the same, there has been an increase in denials:

  • Q4 FY 2017 L-1B petitions for Specialized Knowledge workers were denied at a rate of 28.7 percent versus Q1 FY 2017 at 21.7 percent. The increase in denials continued into FY 2018 with a denial rate of 30.5 percent in Q1 and 29.2 percent in Q2.
  • Q4 FY 2017 L-1A petitions for Managers and Executives were denied at a rate of 21.4 percent, up from 12.8 percent in Q1.

Another possible contributing factor to consider is that USCIS’s Policy Memorandum, issued Oct. 23, 2017, directs adjudicators to review extension petitions with the same scrutiny as an initial petition. It replaced USCIS’s previous policy of giving deference to prior determinations of eligibility when there were not material changes in employment. It is now common for USCIS to issue RFEs for L-1 and H-1B extensions based on initial petitions that were approved without further question.  This may present problems for employers and employees in the context of L-1 extensions for employees who have been in the United States for a number of years as the RFEs request a significant amount of information about previous qualifying employment abroad, and such an employee may not have access to or the ability to compile the detailed historical data needed. In addition, it is common for entities to be restructured and former team members and supervisors to change positions, which could in some cases make it harder to find the required information.

While RFEs are seemingly being issued blindly, there are several things employers and employees should keep in mind:

  • Preparing detailed job duties/descriptions specific to the individual’s position that do not contain any vague or ambiguous terms may evidence upfront that the employment qualifies for the classification sought. Adjudicators seek to understand exactly what the employee will be doing on a daily basis and what tasks the job duties entail.
  • Providing documentary evidence of the employee performing managerial, specialized knowledge, or specialty occupation job duties (e.g., screenshots, emails, reports, presentations, and pictures of the employee carrying out a complex process) may show that the relevant criteria are being met. Including such detail and even a few pieces of supporting documentation upfront may reduce the chance of a RFE, which is certain to require a substantial amount more of both.

USCIS Publishes a Notice of Proposed Rulemaking to Remove Employment Authorization for Certain H-4 VISA Holders

Posted in Department of Homeland Security, E-Verify, Executive Order, Form I-9, H-1B, H-4, Immigration Law, Immigration Reform, President Trump's Administration, Uncategorized, USCIS

As an update (to this recent posting), we clarify that USCIS recently indicated in the Fall Unified Agenda the posting of a Notice of Proposed Rulemaking in November 2018 (see RIN 1615-AC15) on this regulation.

Please check back as this and other H-1B regulatory actions are anticipated in the near future.

U.S. Department of Homeland Security (DHS) has proposed to remove eligibility for employment authorization to certain H-4 dependent spouses of H-1B workers in the publication of the Proposed Rule (RIN 1514-AC15). This DHS proposal was initially expected in February 2018 but was delayed due to review of other regulatory agenda items, according to U.S. Citizenship and Immigration Services (USCIS) Director Cissna. DHS published this proposed rule in response to and in accordance with the priorities set out in the President’s “Buy American and Hire American” Executive Order. DHS anticipates that this will reduce costs of production of employment authorization cards for H-4 nonimmigrants while acknowledging that employers may incur labor turnover costs.

In 2015, DHS published a final rule, which for the first time extended eligibility for employment authorization to dependent spouses of H-1B nonimmigrant workers going through the permanent residence sponsorship process, but subject to green card backlogs. Specifically, H-4 spouses of H-1B nonimmigrant workers for whom I-140 immigrant visa petitions have been approved by USCIS but whose green card applications could not be approved due to backlogs, or those eligible for H-1B extensions because their permanent residence sponsorship was initiated at least 12 months prior to the end of their sixth year of H-1B status, became eligible for employment authorization. At the time, DHS announced that providing for this employment authorization was consistent with its mission to support U.S. employers’ drive to recruit and retain highly skilled nonimmigrant workers.

As DHS’s latest publication is only a proposed rule, it does not automatically invalidate currently valid employment authorization documents for H-4 spouses. Furthermore, even as a final rule, an effective date for cessation of validity of H-4 employment authorization cards would need to be provided by DHS. Until that time, H-4 employment authorization cards remain valid. Contact your attorney with any questions regarding employment authorization as well as Form I-9 and E-Verify compliance issues raised by this DHS proposal.

November 2018 Visa Bulletin Updates

Posted in China, EB-1, EB-2, EB-3, EB-5 Program, India, Philippines, USCIS, Visa Bulletin, Visas

The Department of State (DOS) November 2018 Visa Bulletin shows movement in employment-based categories. The EB-1 category remained retrogressed for November 2018. Although it is likely that there will be some forward movement in December 2018 for EB-1 India, it will probably NOT return to “current” this calendar year. The EB-2 India category will likely move forward in December, but it will probably be only a week or so. The EB-3 category for India on the other hand may start seeing more significant advancement in December (weeks or possibly months). To provide context, the EB-3 India final action date moved very rapidly over the past year, advancing almost a year and a half. Current demand projections make it likely that EB-3 India could surpass EB-2 India at some point this fiscal year.  GT will be closely monitoring these advancements as they unfold.

Referring to the Final Action Dates, following are updates from the September Visa Bulletin:

EB-1: Mainland China and India had significant movement since September 2018, with a cutoff date of June 1, 2016, while El Salvador/Guatemala/Honduras, Mexico, Philippines, and Vietnam all moved forward to April 1, 2017.

EB-2: The cutoff date for worldwide chargeability, El Salvador, Mexico, Philippines, Vietnam are all now current. Mainland China moved to May 15, 2015; India to March 26, 2009.

EB-3: In the EB-3 category, the worldwide chargeability, El Salvador/Guatemala/Honduras, Mexico and Vietnam are all current. The Mainland China cutoff is June 1, 2015; India is January 1, 2009; and Philippines is June 8, 2017.

For those in the EB-5 category, the priority date remains current for all applicants other than those born in Mainland China and Vietnam, where the cutoff for China advanced to Aug. 15, 2014 and for Vietnam to Feb. 1, 2016.

For those seeking to adjust status, The United States Citizenship and Immigration Service (USCIS) website indicates that the department’s Dates for Filing chart must be used for filing Form I-485. This is generally not the case, as USCIS usually requires that applicants use the “Application for Final Action Dates,” which typically reflects earlier cutoff dates than that “Dates for Filing” chart.

Referring to the Final Action Dates, following are updates for the June Visa Bulletin:

Final Action Dates for Employment-Based Preference Cases

Dates for Filing of Employment-Based Visa Applications

Proposed Immigration Rule – Inadmissibility on Public Charge Grounds

Posted in Adjustment of Status, Department of Homeland Security, Immigrant Visa, Immigration and Nationality Act, Immigration Law, Immigration Reform, Non-Immigrant Visas, USCIS

USCIS has proposed rules that could deny entry to non-immigrants seeking admission to the United States and adjustment of status to permanent residence to immigrants if they rely on public benefits for food, housing or medical care, and other forms of public assistance. The proposed rule – “Inadmissibility on Public Charge Grounds” – is published in the Federal Register. The public may comment on the proposed rule during the 60-day comment period ending on Dec. 10, 2018. USCIS will review comments to the proposed rule and then revise and issue a final public charge rule that will include an effective date. In the interim, and until a final rule is in effect, USCIS will continue to apply the current public charge policy.

Pursuant to Section 212(a)(4) of the Immigration and Nationality Act (INA), an individual seeking admission to the United States or seeking to adjust status to permanent resident (obtaining a green card) is inadmissible if the individual “at the time of application for admission or adjustment of status, is likely at any time to become a public charge.”

Under 8 U.S.C. § 1601 (PDF)(1), “Self-sufficiency has been a basic principle of United States immigration law since this country’s earliest immigration statutes.”

Further under 8 U.S.C. § 1601 (PDF)(2)(A), “It continues to be the immigration policy of the United States that aliens within the Nation’s borders not depend on public resources to meet their needs, but rather rely on their own capabilities and the resources of their families, their sponsors, and private organizations.”

While self-sufficiency has been the guiding principle of U.S. immigration law, as indicated in the above federal regulations, “public charge” has not been defined in statute or regulations. According to USCIS, there has been insufficient guidance on how to determine if an alien who is applying for a visa, admission, or adjustment of status is likely at any time to become a public charge. In determining inadmissibility USCIS has used the definition of “public charge” as an individual who is likely to become “primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance, or institutionalization for long-term care at government expense.” (See, “Field Guidance on Deportability and Inadmissibility on Public Charge Grounds,” 64 FR 28689 (May 26, 1999). In determining whether an alien meets this definition for public charge inadmissibility, USCIS considers several factors, including age, health, family status, assets, resources, financial status, education, and skills. No single factor will determine whether an individual is a public charge.

The proposed rule will apply to foreign nationals seeking admission to the United States on non-immigrant and immigrant visas, as well as those non-immigrants who have availed themselves of public benefits within the United States and are seeking to seeking to either extend their stay or change their status. Under the proposed rule, USCIS would only consider the direct receipt of benefits by the individual alien applicant. Receipt of benefits by dependents and other household members would not be considered in determining whether the alien applicant is likely to become a public charge.

Factors that would generally weigh heavily in favor of a finding that an individual is likely to become a public charge include the following:

  • The individual is not a full-time student and is authorized to work, but cannot demonstrate current employment, has no employment history, or no reasonable prospect of future employment;
  • The individual is currently receiving or is currently certified or approved to receive one or more of the designated public benefits above the threshold;
  • The individual has received one or more of the designated public benefits above the threshold within the 36 months immediately preceding the alien’s application for a visa, admission, or adjustment of status;
  • The individual has been diagnosed with a medical condition that is likely to require extensive medical treatment or institutionalization or that will interfere with the alien’s ability to support himself or herself, attend school, or work, and the alien is uninsured and has no prospect of obtaining private health insurance; or
  • The individual has previously been found inadmissible or deportable based on public charge.

Alternately, factors that would weigh strongly against a finding that a foreign national is likely to become a public charge include:

  • The individual has financial assets, resources, and support of at least 250 percent of the Federal Poverty Guidelines for a household of the alien’s household size; or
  • The individual is authorized to work and is currently employed with an annual income of at least 250 percent of the Federal Poverty Guidelines for a household of the alien’s household size.

This proposed rule could have wide-reaching effects on legal immigration to the United States. The rule proposes not only to define “public charge” and the factors to be considered in making current and prospective public charge determinations, but also to add requirements for “public charge bonds” for certain applicants who are more likely to become a public charge. It is important for interested parties to comment on this proposed rule by the Dec. 10, 2018 deadline.

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