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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.

Law360 recently published an article by Rebecca B. Schechter and Courtney B. Noce titled, “The New Normal For Business Immigration in 2018.” The article discusses the year ahead and what employers can expect in terms of immigration. Schechter and Noce provide insights on “Buy American, Hire American” (BAHA), including increased scrutiny and stricter requirements. Additionally, the authors address the disappearance of non-merit-based temporary work authorizations as well as compliance issues facing employers. To read the entire article, please click here.

On Dec. 14, the Office of Management and Budget Office of Information and Regulatory Affairs (OMB) published the biennial Unified Agenda.  A long-standing outgrowth of previous regulatory reform efforts, the Unified Agenda offers the public the “current thinking” of federal agencies on upcoming Agency regulatory priorities.

Of importance to the immigration community, DHS USCIS posed the following regulatory priorities-

United States Citizenship and Immigration Services

U.S. Citizenship and Immigration Services (USCIS) is the government agency that oversees lawful immigration to the United States. USCIS’s role is to efficiently adjudicate and manage petitions, applications, and requests for immigration benefits for foreign nationals seeking lawful immigration status in the United States and for individuals seeking to become citizens of the United States, and other matters within the jurisdiction of the agency, in a manner that detects, deters, and prevents fraud, protects the jobs and working conditions of American workers as appropriate, and ensures the national security, public safety, and welfare of the American people. In the coming year, USCIS will promulgate several regulatory and deregulatory actions to directly support these commitments and goals.

Continue Reading OMB OIRA Releases Unified Agenda and USCIS Regulatory Priorities, Including H-1B, EB-5, and More

On Sept. 27, 2017, the Department of Homeland Security (DHS) made a motion requesting the abeyance of the court’s decision in Save Jobs USA v. United States Department of Homeland Security, commonly referred to as “the H-4 EAD lawsuit,” until Dec. 31, 2017. The motion requests the delay to allow DHS time to evaluate the H-4 EAD rule in light of Executive Order 13788, “Buy American and Hire American.” “Buy American and Hire American” focused on protecting jobs and wages for U.S. workers and called on DHS to evaluate existing programs with this in mind. While the abeyance could be considered positive news in that it will delay the court’s final decision and protect H-4 EADs in the interim, H-4 EADs are unlikely to be viewed in a positive light when considered with E.O. 13788. Anyone eligible for an EAD extension should make their extensions as early as possible. Please contact your GT attorney with any questions.

For more on EAD, click here.

USCIS announced today that it will resume its premium processing service for all H-1B petitions that are subject to this year’s H-1B cap.  This news provides much needed relief to employers and foreign nationals, particularly in those situations where an employee is relying on F-1 optional practical training (OPT) cap gap provisions for work authorization. F-1 OPT cap gap work authorization will expire on Sept. 30, 2017, leaving foreign nationals unable to work unless their H-1B petition is approved before Oct. 1, 2017, or they are able to secure alternative work authorization, which is unlikely for most.

Continue Reading USCIS to Resume H-1B Premium Processing for Petitions Filed under FY2018 Cap

U.S. Citizenship and Immigration Services (USCIS) is denying Advance Parole (AP) applications when an applicant travels internationally while the application is pending with USCIS.  This represents a big adjudication shift by USCIS, which has for several years allowed certain AP applicants to travel abroad while waiting for USCIS to approve an AP application.  By making this adjudication change, USCIS is reverting back to a literal reading of the law as outlined in the Form I-131’s instructions, rather than allowing greater freedom of movement for individuals who are about to become green card holders.  These concerns are amplified when you consider this new practice together with more recent adjudication restrictions posed by the Buy American and Hire American Executive Order with USCIS and consular posts around the globe. In a nutshell, international travel for certain foreign nationals who are lawfully in the United States has become even more difficult.

By way of background, when filing for adjustment of status in the United States, green card applicants generally file concurrently an application for advance parole to permit international travel while the green card application is pending adjudication with USCIS.  Prior to this policy change, failure to secure an advance parole prior to travel abroad resulted in the abandonment of the underlying adjustment of status unless an individual held an H-1B, H-4, L-1, L-2, K-3 fiancé, or V visa. These visa categories allow individuals to have the “dual-intent” of being temporarily present in the United States on a visa, while simultaneously pursuing a green card. Under this new USCIS policy, holders of H-1B, H-4, L-1, L-2, K-3 fiancé, or V visas will have to wait for their advance parole applications to be approved before traveling abroad or their advance parole applications will be denied by USCIS.  This is significant because obtaining an advance parole during the green card process allows green card applicants to bypass the process of obtaining a visa stamp at a U.S. Consulate abroad, thereby avoiding the lengthy visa appointment wait times and possible administrative processing delays that can take months to clear while the applicant is stuck abroad.  With consular officers now taking into consideration the Buy American and Hire American Executive Order, which increases the risk of visa denials resulting in individuals being unable to return to the United States, the advance parole process provides significant travel benefits.

Increasingly, however, USCIS is denying advance parole applications for applicants who travel outside the United States while their advance parole applications are still under review by USCIS, even if the applicant holds a dual-intent visa.  In the denial notice, USCIS is stating that the advance parole applications are being denied due to abandonment resulting from travel abroad.  While denying the advance parole application in these circumstances is technically proper, USCIS had a long-standing practice of approving advance parole applications even if the applicant travels abroad, so long as the advance parole applicant held a dual-intent visa.  Specifically in the denial notices, USCIS is referencing page 6 of its Form I-131 instructions, which states ““[i]f you depart the United States before the Advance Parole Document is issued, your application for an Advance Parole Document will be considered abandoned.”  Of particular concern, under this new USCIS policy, USCIS will deny an advance parole application due to abandonment even when the advance parole applicant travels using a currently valid advance parole.

This new development will hamper green card applicants and those companies that employ them because advance parole applicants must remain in the United States until the adjudication of their advance parole application, which is consistently taking 90-120 days.  For those companies who rely on L-1A multi-national managers or executives, or L-1B specialized-knowledge workers who are also green card applicants, this new USCIS practice may restrict the company’s ability to manage or conduct its global business because these workers are faced with a “soft” travel restriction.   The companies and L-1 workers, along with other workers who have non-immigrant visas, are faced with the decision of obtaining a new visa stamp at a U.S. Consulate abroad to return to the United States, which may be put under administrative processing or denied, or waiting the full 90-120 days before traveling abroad.

Click here for more on issues related to Advance Parole.

Under the heading “Transparency for U.S. Workers,” the U.S. Citizenship and Immigration Services (USCIS) uploaded five reports today containing comprehensive data regarding its H-1B and Employment Authorization Documents (EAD) adjudications. The H-1B reports “provide information about the hiring practices of employers who petition for foreign national workers.” The H-1B trend report contains statistics about the H-1B program from 2007 through 2017. The data listed in this report includes H-1B beneficiary country of birth, age, occupational category, industry, compensation, and education level. The other two H-1B reports are nearly 1,000 pages each and list every company with approved H-1B petitions in fiscal years 2015 and 2016. These reports contain the employers’ total number of approved H-1B petitions, and the average salaries and types of degrees held by the H-1B beneficiaries. The EAD reports list the total number of approved EADs for each immigration category where employment authorization is available to foreign nationals. The reports are separated into immigration classes that are employment-authorized by statute and those immigration classes that are employment-authorized at the discretion of the Secretary of Homeland Security.

The release of these reports coincided with a USCIS teleconference listening session today on the April 17, 2017, Presidential Executive Order, Buy American and Hire American. To review a discussion of this EO, please see our previous post. During the session, USCIS encouraged participants to share their ideas on how to make sure employment-based visa programs are not negatively affecting U.S. workers. USCIS said it was especially interested in feedback regarding the H, L, and E visa classifications and how to utilize those visa programs to protect U.S. workers and wages. USCIS also solicited ideas as to how to ensure H-1Bs (which are subject to an annual quota) are awarded to the best and the brightest.

USCIS announced that DHS and USCIS were working on memoranda to provide new guidance to protect the interests of U.S. workers, including through the prevention of fraud and abuse. USCIS emphasized that all employment-based programs are under review and that the goal was to ensure that these programs are designed to serve U.S. interests and are prioritizing the interests of U.S. workers.

The H-1B and EAD reports are available on USCIS’s website at https://www.uscis.gov/buy-american-hire-american-putting-american-workers-first.