Search results for: USCIS Policy Memorandum

On April 27, 2021, the U.S. Citizenship and Immigration Services (USCIS) announced that it was reinstating its guidance to immigration officers to defer to prior nonimmigrant petition approvals when adjudicating requests for extension of stay that request continuation of employment without change. While the reinstated policy directs USCIS officers to defer to prior approvals in such circumstances, it does specifically allow re-adjudication in cases where petitions request amendments of stay, changes in employment, or otherwise present new material facts, as well as in cases of material error. In bringing back this policy, USCIS has rescinded its 2017 policy memorandum, which reversed this longstanding policy.

The reinstatement of this prior policy, initially issued in 2004, was announced by USCIS on April 27, 2021, and became effective immediately. This reinstatement is implemented consistently with President Biden’s Feb. 2, 2021 Executive Order, “Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans.”

Pursuant to this reinstated policy, where USCIS determines that it will not accord deference to its prior approval, reason for lack of deference must be articulated in a request for evidence or notice of intent to deny, and an opportunity afforded to the petitioner or applicant to respond. Pursuant to this policy, officers must obtain supervisory approval in cases where they seek to decline to defer to prior approvals in cases with no new material facts. With this policy back in place, USCIS may well reduce the number of extension-of-stay requests for evidence, which will in turn help with reduction of processing times.

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.

On June 17, 2020, United States Citizen and Immigration Services (USCIS) issued Policy Memorandum (PM-602-0114) rescinding the following Policy Memoranda, which was the basis of many challenges and denials against H-1B petitioners in the IT third party placement industry:

  1. Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site Placements, issued Jan. 8, 2010, and
  2. Contracts and Itineraries Requirements for H-1B Petitions Involving Third-Party Worksites, PM-602-0157, issued Feb. 22, 2018.

The rescission of the memoranda responds to a settlement between USCIS and a third-party IT employer, following the March 10, 2020, decision by the U.S. District Court for the District of Columbia rejecting USCIS policies against H-1B visa holders.

See GT’s May 2020 blog post on this matter.

The Policy Memorandum offers new guidance in place of the rescinded memoranda focusing on the following issues:

  • Employer-Employee Relationship:
    • The new Policy Memorandum clarifies that there is an employer-employee relationship if at least ONE of the “hire, pay, fire, supervise, or otherwise control the work of” factors under 8 CFR 214.2(h)(4)(ii) are present between H-1B petitioner and beneficiary. Petitioners need to submit copies of any written contracts between the petitioner and the beneficiary, or a summary of the terms of the oral agreement if a written contract does not exist, along with the Labor Condition Application (LCA).
    • The petitioner has the burden of proof to establish that employment exists at the time of filing and that it will employ the beneficiary in a specialty occupation.
  • Contracts:
    • The H-1B petitioner is not required to submit contracts or legal agreements between the petitioner and third parties. The petitioner, however, still must demonstrate the existence of an employer-employee relationship or non-speculative employment in a specialty occupation (work availability).
  • Non-Speculative Specialty Occupation Work:
    • While a petitioner is not required to identify and document the beneficiary’s specific day-to-day assignments, the petitioner must meet all statutory and regulatory requirements (excluding the itinerary requirement) as well as binding court precedent, Administrative Appeals Office (AAO) adopted and precedent decisions, and current USCIS policy guidance concerning H-1B nonimmigrant classification.
    • The guidance concerning benching remains unchanged. Being placed in non-productive status or training for an extended time period, even if paid, may qualify as being “no longer employed in the capacity specified in the petition.”
    • In assessing whether a beneficiary’s non-productive status constitutes a violation of the beneficiary’s H-1B nonimmigrant classification, the officer must determine if the time period of nonproductive status is more than that required for a reasonable transition between assignments.
  • Itinerary:
    • USCIS will abstain from requesting the itinerary under 8 CFR 214.2(h)(2)(i) until further guidance is issued on this requirement.
  • Limiting Validity Periods:
    • USCIS may issue approvals for H-1B petitions with validity periods shorter than the time period requested by the H-1B petitioner. However, the decision must be accompanied by a brief explanation as to why the validity period has been limited.

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 previously reported, on June 28, 2018, the U.S. Citizenship and Immigration Services (USCIS) issued a Policy Memorandum titled “Updated Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Deportable Aliens.”  USCIS has announced that because it is waiting for operational guidance on the Policy Memo from its internal components, the implementation of the Notice to Appear Policy Memorandum has been postponed until the operational guidance has been issued. The agency did not indicate when that might happen. Our team will continue to monitor and report updates on the status of the Policy Memorandum and its impact on our clients.

 

On June 28, 2018, the U.S. Citizenship and Immigration Services (USCIS) issued a Policy Memorandum titled “Updated Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Deportable Aliens.” Later, on July 13, 2018, the USCIS issued a Policy Memorandum titled “Issuance of Certain RFEs and NOIDs.” The two memoranda do not necessarily go hand in hand, but the question lingers whether a denial on an immigration benefit (that leads to no status) will automatically lead to a Notice to Appear (NTA).

To read the full GT Alert, click here.

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”

On Feb. 16, 2018, USCIS published the final policy memorandum on signature requirements, which changed its existing rules for signatures on written requests filed with USCIS. Effective March 18, 2018, all paper filings with the USCIS must include a handwritten ink signature and USCIS will no longer accept signatures of individuals based on power of attorney for corporate clients. The only exceptions where power of attorney signatures will still be accepted are signatures on behalf of children under 14 and individuals with disabilities. There are additional changes made by the final policy memorandum, such as a requirement that an authorized signatory must be employed by the petitioner and that USCIS may reject a form submitted with a faulty signature instead of offering the opportunity to fix the deficiency. Below is a quick summary of the key points identified by the final policy memo regarding signature requirements.

Continue Reading USCIS Finalizes Guidance on Signature Requirements – With Limited Exceptions, USCIS No Longer Accepts Power of Attorney Signatures

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.

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.