Year: 2017

April 20, 2017

On Tuesday, April 18, the President signed another immigration-related Executive Order, “Buy American, Hire American” amid great fanfare and bluster. It has no immediate impact. What this order does is authorize all the federal agencies involved in the H-1B temporary professional worker program – the Departments of Justice, Labor, State & Homeland Security- to undertake and report on a thorough review of current laws governing the H-1B program and other employment-based visas, and to suggest changes that will re-prioritize work visas for the most skilled and highest paid positions, and recommend enforcement measures to combat fraud and abuse. The H-1B program already has low rates of fraud, as well as some questionable ways of identifying it, per an internal USCIS H-1B fraud referral worksheet released in 2012 as a result of a lawsuit under the Freedom of Information Act, which showed that they regard any company with 25 or fewer employees, less than $10 million in annual revenue, or in business for less than 10 years, as an indicator for fraud, triggering extra scrutiny – USCIS inherently regards all small businesses with suspicion, in addition to looking at true fraud indicators such as whether the beneficiary actually works at the stated location, is paid the stated salary, and has a degree appropriate to the professional job. Public perception is at the other end of the spectrum, dominated by the impression that large US corporations use the program to hire lower-paid foreign workers and make soon-to-be-downsized US staff train their lower-paid replacements, fed by stories such as the Disney disaster and more recently a one-sided expose on 60 Minutes. While a small number of well-publicized incidents have highlighted such abuses, this perception does not take into account that a vast majority of the roughly 27,000 employers who participate in the H-1B program do act in good faith, comply with all requirements including prevailing wages, and undertake significant legal costs and filing fees to bring H-1B workers onboard, then extend and renew their H-1B status, and sponsor some of those workers for permanent residence.
With respect to this Executive Order, and any potential others, it is noteworthy that the President does not actually have authority to make any changes to the H-1B program on his own. Any changes would require either legislative action by Congress or regulatory changes to be implemented by the Agencies, with public notice and comment under the Administrative Procedures Act, so nothing is likely to happen right away. No major changes other than additional fees have been made to the H-1B program since 1990, so there are surely ways in which the H-1B program can be improved to better meet the needs of US employers (A lottery system? Hiring of foreign professionals limited to one week in the year? These are a disservice to the economy) and of the US labor market. They should start with  better enforcement of existing rules, and better understanding of all the industries that make significant use of the H-1B program, including universities & hospitals, and a comprehensive look at the ways in which it does serve the US economy, and could do so more efficiently. When changes do come, they are likely to restrict the most prevalent abuses and support growth at the high end of the program, which has been underserved for years, with all H-1B visas for a fiscal year that has not yet begun used up in a single week, as has happened for the past five years in a row.

 

This new Executive Order was followed more quietly on Wednesday, April 19, 2017, by a USCIS Policy Memo designating the decision of the Administrative Appeals Office in Matter of O-A-, Inc. as an Adopted Decision. This case is now considered formal guidance, to be applied uniformly by all USCIS officers. The O-A- decision has far more immediate impact than the Executive Order, as it states that provisional certificates from a school submitted in lieu of a diploma must be analyzed on a case-specific basis, to determine whether the beneficiary has in fact completed all substantive requirements necessary to earn the degree, and if the university or college has approved the degree. If the provisional certificate does so demonstrate, then the date of the certificate may be used as the date of degree completion for purposes of calculating post-baccalaureate work experience.  This policy memo recognizes a critical distinction between a provisional certificate issued instead of a diploma for a technical reason, such as a mid-year completion or because the student owed outstanding fees, and a certificate issued to a student who failed to submit a thesis required for that degree. The O-A- decision, and resulting policy memo, address the common circumstance in employment-based green card cases where a worker qualifies as an “Advanced Degree Professional” based on completion of a Bachelor’s degree plus five years of experience in the profession (BA+5). If the worker’s provisional certificate does not support a finding that they had completed all substantive requirements for issuance of a degree, then they cannot be deemed to have begun accruing post-baccalaureate work experience.

March 15, 2017

USCIS will accept new H-1B petition filings subject to the annual cap for FY 2018 from April 3 to April 7, 2017. However,  the Service will simultaneously suspend the availability of Premium processing for all H-1B cases as of April 3rd, including those for cap-exempt employers, portability between employers, and extension of stay requests for existing staff.

The suspension of Premium processing means all cap-subject new H-1B petitions could remain pending past October 1st, but it also has huge implications for H-1B workers and employers who are not facing this year’s cap. It is guaranteed to negatively impact the US business community and many foreign workers already counted against the cap in prior years whose H-1B status needs to be extended, as well as cap-exempt organizations such as universities and teaching hospitals, since adjudication of non-Premium petitions can routinely take 240 days or more.

Adding to the misery, under the Patriot Act, state motor vehicle authorities will not renew a foreign worker’s driver’s license unless the worker presents a currently-valid I-797A Notice of Approval from USCIS. This means that H-1B workers who are beneficiaries of timely-filed extension requests could be stuck unable to drive for months on end. Outside of New York City, where few residents need to drive, this will impact any company that has existing H-1B employees, or whose contractors have H-1B employees, if some of those workers need to extend their status after April 3rd and need to drive to get to work. This is likely to create big headaches even for companies that file no cap-subject H-1B petitions this year.

 

March 10, 2017

Rather than pursue further court challenges to the original “travel ban” executive order of January 27, the president instead issued a new Executive Order scrapping and attempting to cure legal deficiencies of the first one. Implementation of the first Executive Order was stopped by a Temporary Restraining Order issued by a federal court in Washington state, and upheld by the 9th Circuit Court of Appeals.  The new Executive Order, issued March 6, 2017, bears the same title as its predecessor, “Protecting the Nation from Foreign Terrorist Entry Into the United States.” As an attempted end-run around litigation, this new edict shows a White House apparently both undeterred and uninformed by the internal DHS memorandum entitled “Citizenship Likely an Unreliable Indicator of Terrorist Threat to the United States,” leaked to the Associated Press.

The President cited vague terrorism concerns for implementing the refreshed ban on entry of nationals from a few mostly-Muslim countries – Iran, Libya, Somalia, Sudan, Syria & Yemen. It bars entry of nationals from these countries for 90 days, and the ban is to be revoked, reviewed, and expanded or extended as of June 14, 2017, if those countries fail to cooperate. Like its predecessor, it suspends refugee admissions and cuts the annual total limit on all refugees to 50,000. It also drastically curtails the availability of mail-in & drop-box programs for visa renewal applicants.

The initial ban and its replacement do not name or impact nationals of a broad array of other Muslim countries such as Saudi Arabia and Egypt, which gave us the 9/11 hijackers, nor do they target many other Muslim countries that happen to be home to certain gold tinted hotel properties.

Vainly hoping to avoid the legal impediments of its namesake, the new travel ban specifically excludes the following individuals from its impact:

  • Lawful Permanent Residents and nationals of the six named countries who hold valid nonimmigrant visas to the U.S.;
  • Any person lawfully admitted or paroled into the United States before the effective date of the Executive Order, March 16, 2017;
  • Any dual national of the six named countries seeking admission to the U.S. under  the passport of a country that is not on the list;
  • Any national of one of the six countries traveling on an A or G diplomatic visa, NATO visa, or C-2 transit visa for travel to the United Nations;
  • Anyone already admitted to the U.S. as a refugee, granted asylum in the U.S., granted withholding of removal, granted advance parole or protection under the Convention Against Torture, as of the effective date (3/16/2017).

As a way to avoid legal challenges, travel ban 2.0 has failed spectacularly: the revised Executive Order has already prompted lawsuits by Hawaii, Washington, California, Maryland, Massachusetts, New York and Oregon, joined in Maryland by immigrant advocacy groups & the ACLU. On Wednesday March 15,  judge Derrick Watson in Hawaii issued a TRO halting implementation of the new travel ban, and on Thursday, March 16, judge Theodore Chuang in Maryland issued a narrower order striking down the portion of the ban refusing to issue visas to nationals of the six countries.

Last updated March 17, 2017

January 27, 2017

Here is a very brief, itemized list of what is contained in the first three immigration-related Executive Orders, what they authorize, and some notes on how they are being implemented. PLEASE SCROLL DOWN FOR UPDATES ON THE TRAVEL BAN, & SEE RELATED BLOG POST ABOUT THE NEW EXECUTIVE ORDER.

  1. Authorizes building a wall along the entire 1,954-mile US-Mexico border.
  2. Authorizes construction & staffing of mass detention facilities in proximity to border. Unclear if asylum officers & immigration judges are subject to federal hiring freeze.
  3. Expands expedited removal from within 100 miles of border to entire country, & from entrants within 14 days to anyone who cannot prove continuous presence in the US for at least 2 years.
    [Expedited removal means no right to counsel & no right to a hearing before a judge: summary deportation in the sole discretion of DHS.]
  4. Ends “catch & release,” curbed already in 2006, i.e. mandates detention of all individuals crossing at Southern border w/o exception, even if only suspected of violating immigration laws, plus all individuals in removal proceedings, whether or not they have a final order of removal.
  5. Authorizes conduct of removal proceedings outside the US. Requires cooperation of Mexico & Canada.
  6. Restricts use of parole authority for removable aliens [Goodbye, DACAbally. Impacts AOS applicants with Advance Parole who have any prior unlawful presence. If interpreted broadly, could apply to all AP holders.] Limits Credible Fear Interviews.
  7. Authorizes criminal prosecution of unlawful entry, which is a crime under 8 USC 1325.
  8. Makes every undocumented immigrant a priority for removal, throwing allocation of ICE ERO resources into confusion- if everyone is a priority then no one is. Widespread enforcement actions have begun.
  9. Reinstates “Secure Communities” which requires local Law Enforcement Agencies to share fingerprint & arrest data with DHS, & honor ICE detainers: [parts of S.Comm. have already been found unconstitutional.]
  10. Expands 287(g), under which state & local LEAs perform functions of ICE officers. The implementing interagency Memoranda of Understanding/Memoranda of Agreement are still in place.
  11. Plans to publish a weekly list of criminal acts committed by foreign nationals in the US.
  12. Within a year, directs promulgation of regulations to collect civil fines & penalties from unlawfully present non-citizens, and “those who facilitate their presence.” Unclear whether this applies to family, roommates, legal service providers, shelters, congregations.
  13. Orders hire of an additional 5,000 CBP Border Patrol agents, and 10,000 more ICE Enforcement & Removal Operations officers.
  14. Denies federal funding to “sanctuary cities.” About 500 cities refused to comply with Secure Communities because it undermines community policing; where enforcement of S. Comm. entails constitutional violation, the city & not the federal government would be held liable.
  15. Requires other agencies such as IRS & Social Security to share data on unauthorized immigrants with DHS.
  16. Rearranges “enforcement priorities” to include any person without lawful visa status convicted of a criminal offense, charged with a criminal offense, suspected of committing an offense, who has committed acts that constitute a criminal offense, or any type of fraud, who has used a fake SSN, or who has received any federal benefits (even indirectly) – such as living in HUD or Section 8 housing as a spouse, sibling, child or roommate of someone legally receiving benefits.
  17. Removes Privacy Act protections from anyone other than US citizens & Lawful Permanent Residents. Lawful work visa holders could have their personal information disclosed to other countries.
  18. Suspends all refugee resettlement under US Refugee Admission Program for 120 days, even for those who have completed all steps in screening process; requires “extreme vetting.” Reduces annual refugee quota by more than half, to 50,000. Allows DHS to give state & local authorities involvement in (i.e. authority to reject) refugee placement. Exceptions may be made on a case-by-case basis. Gets rid of all exemptions for “Terrorism related inadmissibility grounds.”
  19. Indefinite ban on Syrian refugees.
  20. 90-day ban on entry into the US by nationals of Iran, Iraq, Libya, Somalia, Sudan, Syria, Yemen on any temporary visa, immigrant visa, advance parole, or green card. **Lawful permanent residents (“LPRs”) have been exempted, and there is now a permanent injunction enjoining enforcement of the travel ban, granted by district court in Washington State & upheld by the 9th Circuit Court of Appeals: U.S. Customs & Border Protection and most  foreign airlines are  (largely) complying. If you or someone you know has a visa & needs to return to the US, contact counsel ASAP for guidance. Ban does not expire if the listed countries refuse to accept repatriation of removed (deported) nationals of those countries from US. Other countries may be added. Department of State issued a cable cancelling all visa interviews for nationals of these countries, and provisionally revoking already-issued immigrant & nonimmigrant visas. As of Jan. 31, a federal court order was issued in California enjoining cancellation of immigrant visas. Department of State has reversed the provisional revocation of all immigrant & nonimmigrant visas, so those whose visas were not physically cancelled may travel to US: I-193 document waivers are being processed without fee at Ports of Entry.
    (Ban does not apply to naturalized US citizens, nor to nationals of Saudi Arabia, Bahrain, Oman, Qatar, & UAE, nor to nationals of Bangladesh, Egypt, Indonesia, Morocco, Pakistan, Turkey or other Muslim-majority countries:  DHS has retracted the ban on returning Lawful Permanent Residents, but has coerced many into executing Form I-407, Record of Abandonment of Lawful Permanent Residence. Do not sign w/o your attorney!)
  21. Cancels visa interview-waiver programs for repeat visa applicants at same consular post. In-person interviews required for all visa applicants, except where exempt by law: Statutory exceptions are listed at 22 CFR 41.102, including diplomatic & NATO visas, and repeat visa holders applying within 12 months of expiry of prior visa in same category.
  22. Directs development of standard procedures to screen all immigration benefits to identify fraud, intent to do harm, evaluate likelihood of becoming a positively contributing member of society, & ability to make contributions to the national interest.Will include a standard form, in-person interviews, etc. Unfunded mandate; duplicates many existing procedures; requires agreement on procedure by 5 federal agencies.
  23. Expedites implementation of a comprehensive biometric entry-exit system.

For some other insights by excellent attorneys with a different perspective, please see the summaries of these first three Executive Orders as published by my distinguished colleagues – removal expert Susan Pai, & waiver goddess Laurel Scott, as well as some fact sheets (including in other languages) by the Legal Aid Society.

Last updated March 10, 2017. Check this page for further updates.

January 25, 2017

“Houseguests are like fish, they start to stink up the place after three days.” This aphorism, commonly attributed to Benjamin Franklin, is often quoted as a universal benchmark of freshness.

Foreign professional workers in H-1B visa status have good reason to be concerned with the freshness of their last paystubs, when contemplating the end of the job that serves as the basis for their visa status, regardless of whether they quit or are terminated. In an era of economic uncertainty, where companies in any industry may suffer waves of layoffs, it is prudent for foreign workers to think ahead about what would happen if the H-1B job ended. The first question on their minds is usually, “How long do I have?”

Paystubs do not start to stink after a mere three days, but how long they remain fresh depends on the circumstances, and it is highly subjective. USCIS briefly embraced a “zero tolerance” policy on this issue, but then thought better of it… presumably based on existing provisions of law, and the realities of timing interactions between a worker, a prospective new employer, and that new employer’s law firm. After all, the whole point of H-1B portability is to promote freer movement of labor.

There are multiple sources of possible administrative delay: the worker’s education and visa status documents are assembled by a hiring manager or human resources specialist at the prospective employer, then forwarded to counsel, then draft Labor Condition Application documents are prepared by counsel and sent to the employer, notices are posted by the employer and an LCA is filed with the Department of Labor, then H-1B petition documents are sent to the employer, reviewed & signed, returned to counsel and filed with USCIS. Given those required steps, especially in a corporate setting where any drafts provided by outside immigration counsel may also be reviewed by in-house counsel before they can be signed, the worker’s paystubs that were a day old when first supplied to the prospective employer could be several weeks to more than a month old by the time a new H-1B petition is filed.

An H-1B professional worker is technically “out of status” as soon as the job ends – devaluing any post-termination paystubs marked “Severance.” However, such a worker remains in the more hazily-defined “Period of stay authorized by the Attorney General” so long as the expiration date on his or her I-94 entry/departure card has not been reached. Once that I-94 card expires, the worker has overstayed, and is not merely “out of status” but also “unlawfully present.”

Finding a new job – and a willing new H-1B visa sponsor – can be especially difficult to plan for when job termination is sudden, involuntary, and due to events utterly beyond the worker’s control, such as a layoff, or if the current employer goes out of business. Such events grow more frequent in an unstable economy, so an H-1B worker should be aware of the landscape.

A prudent H-1B worker may see the writing on the wall before their job or their employer’s business comes to an abrupt end, and may look proactively to transfer to another employer while they are still working for the approved H-1B employer. However, even workers proactively planning for change may face a concern beyond their control: what happens if the existing H-1B employer is merged into or acquired by another company, so their paystubs no longer reflect the name on their H-1B visa or approval notice? Failure to file timely amended petitions for affected H-1B workers is not the fault of the workers; it is either a non-material change, or a violation by the employing company.

Nonetheless, a petition seeking to take advantage of H-1B portability may face a challenge from USCIS and the worker could potentially be deemed out of status if all the worker can produce for the new employer is recent paystubs that do not match the company name on the worker’s most current petition approval notice, unless they can also produce a published press release or news article detailing the merger or acquisition.

The landscape for H-1B workers between jobs changed dramatically with publication of the High Skilled Worker Rule, which went into effect on January 17, 2017. Now there is a formal, officially-recognized 10-day grace period tacked on at the beginning and at the end of petition validity periods, and a 60-day grace period has been created for H-1B workers whose employment is involuntarily terminated by the employer before the ending validity date of the approved H-1B petition. Note that the 60-day grace period does not apply where the worker voluntarily leaves his or her approved employment, so there are open questions remaining about how USCIS will interpret maintenance of status and approveability of subsequent H-1B portability petitions where the worker’s departure was voluntary.

In sum, the timing concerns involved in making the leap to a new H-1B employer will always hinge on case-specific details that should be discussed with counsel at the earliest opportunity, but it does not have to be a mystery.

 

**Last updated Jan.25, 2017

January 8, 2017

On December 27, 2016, the Administrative Appeals Office issued a valuable precedent decision in Matter of Dhanasar, 26 I&N Dec 884, Int. Dec. 3882, altering and broadening the legal standard for national interest waiver immigrant visa petitions. The new standard allows USCIS to waive both job offer and labor certification requirements where a petitioner with demonstrated eligibility for EB-2 classification as either an advanced degree professional or an alien of exceptional ability, shows by a preponderance of the evidence 1) that the proposed endeavor has substantial merit and national importance; 2) that the foreign national is well-positioned to advance the proposed endeavor; and 3) that on balance, it would be beneficial to the United States to waive the requirements of both the job offer and labor certification.
This decision vacates the burdensome precedent Matter of NY State Department of Transportation (“Matter of NYSDOT”), in place since August 1998, which established an onerous three-pronged legal standard. The NYSDOT standard required 1) that the proposed endeavor be national in scope (often interpreted in a pedantic, literal-mindedly geographic fashion); 2) that the foreign national’s work must have “substantial intrinsic merit”; and 3) that the national interest would be adversely affected by requiring labor certification for the foreign national, which essentially required the petitioner to prove a negative.

The Immigration & Nationality Act, as amended by IMMACT’90, provides at INA 203(b)(2) that the requirement of labor certification (a test of the labor market for qualified US workers, by means of a complex & regimented recruitment program overseen by the Department of Labor) may be waived for members of the professions holding advanced degrees, or for individuals of exceptional ability, who “will substantially benefit prospectively the national economy, cultural or educational interest, or welfare of the United States,” i.e. where the individual’s work is deemed to be “in the national interest.” Amazingly, neither Congress nor the immigration service (then INA, now USCIS), has ever sought to define the “national interest.”

The framework provided by the AAO in Matter of Dhanasar offers further interpretive guidance for each prong of its new test.

Under the first prong, substantial merit may be shown in business, entrepreneurialism, science, technology, health, culture or education, and the AAO notes that scientific or research benefits may not translate into economic impact. To gauge the national importance of the proposed endeavor, look to its potential prospective impact, explicitly not limited to geographic impact.
Under the second prong, to determine whether a beneficiary is well-positioned to advance the proposed endeavor, the non-exclusive factors to consider may include the foreign national’s education, skills, knowledge, record of success in similar areas, plan for the future, progress made toward achieving the proposed endeavor, and demonstrated interest of related parties, such as users, customers, or investors.

Under the third prong, when showing that it would benefit the United States to waive the job offer and labor certification requirements, relevant factors may include whether it would be impractical in light of the foreign national’s background; whether the proposed endeavor would still benefit the United States even if other qualified US workers are available; and whether the US interest in the foreign national’s contributions is sufficiently urgent to forgo labor certification. The AAO explicitly said this test was intended to be more inclusive and flexible than the NYSDOT standard.

“We note that this new prong, unlike the third prong of NYSDOT, does not require a showing of harm to the national interest or a comparison against US workers in the petitioner’s field. As stated previously, NYSDOT’s third prong was especially problematic for certain petitioners, such as entrepreneurs and self-employed individuals. This more flexible test, which can be met in a range of ways as described above, is meant to apply to a greater variety of individuals.” (Matter of Dhanasar, at 891)

Hopefully, application of this new standard for national interest waivers will eliminate the cumbersome apples-to-oranges comparison arguments necessitated by NYSDOT.