Update on USCIS Efforts to comply with “Buy American and Hire American”

On April 4, 2018, the Director of USCIS, Lee Francis Cissna, penned a letter to Chairman Grassley to update him on USCIS’ efforts to comply with the April 2017 Executive Order, “Buy American, Hire American.”  The contents of the letter are broken into three parts:  1) Current action items for USCIS; 2) Past items; and 3) Proposed future items to address. Below are the pending changes, proposed changes, and made changes that have occurred since the Executive Order:

Continue Reading Update on USCIS Efforts to comply with “Buy American and Hire American”

Since the introduction of the Executive Order “Buy American, Hire American” (BAHA), federal agencies, including DHS and USCIS, are following the directive to focus on protecting U.S. workers and U.S. resources.  The USCIS website was updated as of Dec. 20, 2017 regarding BAHA and below are key highlights from this update, which is essentially a recap of all USCIS’ activity this year under the BAHA directive:

  1. USCIS is taking direction from its July 26, 2017, stakeholder call to make some changes. During the call, individuals expressed the need to continue improving the integrity of the immigration system to protect both U.S. workers and foreign workers.
  2. E-Verify:  USCIS stresses that E-Verify is strongly encouraged for all employers
  3. Reporting Fraud:  USCIS reiterates resources and programs for the public to report fraud-designated email addresses specifically for H-1B and H-2B fraud.  USCIS will also enhance their site visit programs, and will specifically focus on employers who petition for L-1B employees working at a third party worksite.  Lastly, USCIS will be enhancing information sharing with the Department of State, Department of Labor, and Department of Justice to improve the immigration system and combat fraud.
  4. H-1B data:  As we have seen recently, USCIS has been publishing reports on the H-1B visa, including types of workers, trends, and approval/denial rates.  EAD reports have also been issued.
  5. Lastly, USCIS summarizes policy memorandum that have been issued this year.  These include:
    1. Memo on how to classify TN nonimmigrant Economists under NAFTA.
    2. Memo that all nonimmigrant petitions, including H-1B, will be adjudicated as new and deference will not be given for extensions.
    3. Memo on the definition of “affiliate” or “subsidiary” for determining the ACWIA fee- this fee is important as it pays for U.S. workers to attend job training and receive low-income scholarships.

GT will continue to monitor any updates from USCIS as well as any activity resulting from BAHA.

For more information on USCIS activities, click here.

For over a decade, filing an extension of nonimmigrant status in visa categories such as the H-1B was a fairly routine process for cases involving the same employer and same underlying facts.  This changed yesterday. As part of the Trump Administration’s Buy American, Hire American: Putting American Workers First initiative, USCIS rescinded a long-standing policy from 2004, The Significance of a Prior CIS Approval of a Nonimmigrant Petition in the Context of a Subsequent Determination Regarding Eligibility for Extension of Petition Validity; and Part VII (Readjudication of L-1B Status) of L-1B Adjudications Policy from 2015, and issued new policy guidance entitled Recission of Guidance Regarding Deference to Prior Determinations of Eligibility in the Adjudication of Petitions for Extension of Nonimmigrant Status.  This new guidance instructs USCIS officers to no longer give deference to prior determinations of eligibility for extensions of nonimmigrant status that include the same parties and underlying facts and shifts the burden of proof back to the Petitioner/Employer.  This new guidance will impact extensions of nonimmigrant status that use the I-129 Form and will likely result in the issuance of more Request for Evidence (RFE) notifications.  Employers who were already experiencing heightened scrutiny and hurdles in the H-1B program over recent months, including the systematic issuance of Wage Level 1 RFEs, will now see an even higher percentage of RFE notifications.  We will continue to monitor and report on review trends that result from this guidance.

For more information on H-1B visas, please click here.

*Not admitted to the practice of law.

On April 18, 2017, President Donald Trump signed an Executive Order (EO) titled “Buy American and Hire American.” The stated purpose of this EO is to protect the American economy by having the U.S. government and agencies focus on purchasing goods made in America, and to also protect American workers. The first part of the EO includes text that focuses on conducting studies and putting forth plans for federal agencies to immediately maximize the use and procurement of materials and products made in the United States—or “Buy American.”

The second part of the EO includes text that focuses on “Hire American,” that is, reviewing current U.S. immigration laws, specifically as they relate to nonimmigrant visa categories. A summary of the second part of the EO is below:

Ensuring the Integrity of the Immigration System in Order to “Hire American”:

  • The Secretary of State, the Attorney General, the Secretary of Labor, and the Secretary of Homeland Security are tasked with proposing new rules and issuing new guidance with the intent of protecting U.S. workers and eliminating fraud or abuse.
  • In addition, the text of the EO directs that reforms should be focused on ensuring that H-1B status is only granted to those who are the “most-skilled” or the “highest-paid.”

This EO comes only a few weeks after various U.S. federal agencies tasked with administering immigration law issued guidance and decisions with the intent of preventing fraud and abuse in the immigration system, specifically the H-1B program. The United States Citizenship and Immigration Service, the Department of Justice, and the Department of Labor all released statements and/or policy with regard to the H-1B program.  To see a summary regarding these statements and/or policies, please visit our previous post.

As this EO is general in nature and does not dictate any specific timelines for the “Hire American” portion, Greenberg Traurig will continue to monitor the conditions and changes. To receive updates, please subscribe to our blog.

Over the last four years the U.S. immigration policy has been through many drastic changes. The Trump Administration from the beginning promised significant reforms with an overarching theme of one its seminal Executive Orders of 2017 – Buy American Hire American.

Business immigration practitioners and employers that rely on their guidance have experienced significant upheavals in the way non-immigrant and immigrant visa processes are administered. There has been a sea of changes driven by proposed legislation to focus on Merit-Based Immigration to Executive Actions rolling back current programs and policies to protect the U.S. economy and U.S. workers, especially during a pandemic.

What would a new Administration led by Joe Biden and Kamala Harris do to change the current state of play?

Experience with the Obama/Biden Administration and a review of the stated immigration plans of the Biden/Harris campaign indicate that we might see the following:

Executive Actions

  • Reversal of Travel Ban Proclamations banning entry from those present in the Schengen area, U.K., Ireland, Brazil, Iran, and China
  • Reversal of the Ban on the Issuance of Immigrant Visas and Non-immigrant L-1 and H-1 Visas
  • Reversal of the Ban on Certain Students from China
  • Reinstatement of the DACA Program
  • New TPS Designations
  • Review of Interim Final and Proposed Rules impacting the H-1B and PERM programs
  • Withdrawal of Guidance Memorandums on Respecting Precedent in Adjudication of USCIS cases
  • Review of F-1 and J-1 proposed rules on Duration of Status
  • Additional Funding for USCIS/DOL/DHS
  • EB-5 Reform – Nullifying the EB-5 Rule and pushing for legislative reform
  • Withdrawal of Public Charge Attestations from those seeking certain Immigration Benefits

Litigation

  • In-depth review of current cases challenging immigration rules and the position of DHS/USCIS/DOJ

Legislation

  • Attempts to Pass HR 6 providing relief to DACA and TPS beneficiaries
  • A push to pass the Elimination of Per Country Quotas – The Fairness in High Skilled Immigration Act
  • Comprehensive Immigration Reform to include Reform of the NIV and IV Systems
  • EB-5 Reform – Nullifying the EB-5 Rule and pushing for legislative reform

While Inauguration Day isn’t until Jan. 20, 2021, and there is a lot to be sorted out between now and then, it is safe to say that a Biden Harris Administration would handle business immigration policy in a dramatically different way.

In support of its efforts to combat H-1B fraud and consistent with President Trump’s Buy American Hire American initiative, the U.S. Citizenship and Immigration Services (USCIS) will now require employers sponsoring H-1B workers at third-party worksites to include additional information and documentation in their H-1B filings. The new policy memorandum “Contracts and Itineraries Requirements for H-1B Petitions Involving Third-Party Worksites“, effective Feb. 22, 2018, largely formalizes existing USCIS policy on H-1B petitions involving third-party worksites, but also spells out new requirements regarding end-client letters and itineraries.

USCIS indicates that this new memo is a continuation of USCIS’s previous policy memo on third-party worksite H-1B petitions from Jan. 8, 2010, “Determining the Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site Placements” (also known as the Employer-Employee Memo) and that employers should provide the additional documentation and information described in the memo in order to show by a preponderance of the evidence that (1) the H-1B worker will be employed in a specialty occupation; and (2) the employer will maintain an employer-employee relationship with the H-1B worker for the duration of the requested employment period.  In short, the employer must establish that it has “specific and non-speculative qualifying assignments in a specialty occupation for the [employee] for the entire time requested on the petition.”

Companies that sponsor H-1B employees working at third-party worksites will recognize much of the additional evidence described in this memo as USCIS routinely requests these documents in Requests for Evidence.  To prove that the H-1B worker at a third-party worksite will be employed in a specialty occupation and that the employer-employee relationship exists, the memo says that employers should submit contracts and work orders, work product, and contractual agreements related to the H-1B employee’s placement.  While an end-client letter is not a new requirement, the memo specifies that the end-client letter should include a detailed description of the H-1B employee’s job duties, the job requirements, the duration of the job, the salary, hours worked, benefits, and information about who will supervise the H-1B employee. It is sometimes difficult for H-1B employers to obtain end-client letters and requiring so much information in a letter will make the process more difficult. It is also unclear why an end-client would have detailed information about an H-1B employee’s employment since the end-client is not the employer. Requiring an end-client to provide this information about an H-1B visa holder providing services at its facility also raises concerns about joint employment.

Similarly, USCIS often requests itineraries in Requests for Evidence issued on third-party worksite H-1B petitions. The memo confirms the itinerary is a regulatory requirements and that employers must provide detailed itineraries for each worksite listed in the petition or the petition will be denied.

Twice a year, the Office of Management and Budget, in concert with the General Services Administration and its own Office of Information and Regulatory Affairs, publish the Unified Regulatory Agenda (Unified Agenda). The Unified Agenda is a transparency program that publishes federal agency rulemakings in process. It is not a process set in concrete but rather a snapshot in time to inform the public of rulemakings and regulations being developed by federal agencies.

The Department of Homeland Security (DHS) postings, released Nov. 21 for Fall 2019 are here. In addition to enabling the searching of regulations by agency and content, the agencies offer a regulatory “plan” which sets out regulatory principles. The DHS statement can be found here. Continue Reading OMB Releases Fall 2019 Unified Regulatory Agenda; DHS & USCIS Expect Active Rulemakings

The H-1B program is undergoing even more scrutiny under the current White House administration. Under the “Buy American, Hire American” Executive Order, the goal is for companies to hire only the best and the brightest for visa sponsorship, mostly H-1B visa holders. The Department of Labor (DOL), the governmental agency that handles the public disclosure information for employers looking to sponsor H-1B employees, has always released information for Labor Condition Applications (LCAs) in conjunction with the H-1B petition. The LCA has traditionally disclosed information including employer name, address, salary wage range, and worksite location, among other attestations the employer must make to meet labor and immigration laws. In November 2018, the DOL changed the format of the LCA to include those employers that place employees at a third-party client site, many of which petition for their own H-1B workers. See our November 2018 blog post here. Continue Reading Department of Labor Adds More to Disclosure Data to Include End Client Information

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.

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.