Category Archives: Immigration

NOW is the Time to Assess H-1B Visas for 2022!

Contributed by Jacqueline Lentini McCullough, January 10, 2022

11411781 – photograph of a USCIS logo and American flag.

With the New Year upon us, it is time to begin the initial H-1B process for any interested companies or organizations with foreign workers. Now is the time to see if anyone will need assistance with an H-1B petition. 

In 2019, USCIS implemented a new electronic registration system for employers seeking to file H-1B cap-subject petitions for foreign national employees. Last year, the registration period for foreign nationals ran from March 9 to March 25, 2021. We anticipate a similar timeframe this year. Once the registration period is over, the US Citizenship and Immigration Service will then run a random selection process on those electronic registrations. Only employers with selected registrations will be eligible to file H-1B cap-subject petitions. Following the selection process, employers will have a 90-day window to file the case(s) selected. If insufficient H-1B cap-subject petitions are received by USCIS from the initial selected registrations, then they may conduct a second or even a third lottery as has been done in the past.

It is therefore important for employers to assess who among their foreign nationals will need a change of status to H-1B, and will need to be registered in the government system as soon as possible.

New Life for H1-B Petitions: Market Research Analyst Ruling a Good Sign for H-1B Petitioners

Contributed by Jacqueline Lentini McCullough, November 17, 2021

Immigration Law books with a judges gavel on desk in the library. Law education ,law books concept.

In December 2018, I got an unpleasant surprise: My first – and only – H-1B petition denial in my over 20+ years of practicing immigration law.

The petition was on behalf of an operations research analyst. I had done the same petition for other operations research analysts at this company. USCIS had approved them all, some all the way to green cards.

In this case I prepped the client, submitted a thorough petition, and responded to all requests for evidence. Unfortunately, this unpleasant surprise was not a shock. USCIS’s scrutiny had intensified and as many thought it was overstepping its bounds, creating a downward trend on approvals.

USCIS Scrutiny Oversteps Bounds

H-1B visas pertain to specialty occupations, jobs that by definition require a bachelor’s degree. When assessing an H-1B petition, USCIS consults one of two sources to check the job requirements. The first, and most common, is the Occupation Outlook Handbook (OOH). The second is O*Net.

Job descriptions in the OOH describe bachelor’s degree requirements in various ways. It will say a job “typically requires a bachelor’s degree” or “normally requires a bachelor’s degree” or “a bachelor’s degree may be required.” Until recent years, those descriptions sufficed to qualify a position as H-1B eligible. The wording of the job descriptions was understood to reflect the reality that employers look for candidates with bachelor’s degrees for those positions.

During the past administration, however, USCIS resorted to a stricter interpretation of those statements. Seizing on the notion that qualifying words like “normally,” “typically,” and “may be” signify it is not always the case. Based on this interpretation USCIS began denying petitions for positions it had approved in the past.

USCIS Unlawful Denial Challenged

In particular, one position that got caught in USCIS’s crosshairs was market research analyst. USCIS was arbitrarily denying H-1B market research analyst petitions for not qualifying as a “specialty occupation” based on the OOH description.

Noticing this pattern, the American Immigration Council, the American Immigration Lawyers Association (AILA), and several law firms brought a class action lawsuit. USCIS tried to get the case dismissed. When all attempts failed, instead of litigating it they reached a settlement agreement.

Settlement Agreement is a Good Sign

The settlement agreement corrects the Agency’s error and stipulates that employers whose H-1B market research analyst petitions were denied between January 2019 and October 2021 may request that USCIS reopen and re-adjudicate their cases.

This result  raised hopes among the immigration law community that arbitrary denials based on failing to qualify as a “specialty occupation” will cease for other positions. We view the rulings by the court and resulting settlement as setting precedent.

With these changes, it should be much easier for businesses to use H-1B petitions for their employees, and open up more options for their workforce. Additionally, it means that there is new life for any H1-B petition that was denied during the January 2019 to October 2021 time period – as the rulings and settlement indicate that there is a much better shot at those petitions being approved now if re-opened and re-adjudicated.

With US Easing Travel Restrictions, Foreign National Visa Holders Ask: Can I Go Home?

Contributed by Jacqueline Lentini McCullough, October 1, 2021

Airplane in the sky at sunrise

As soon as the Biden administration announced it would ease travel restrictions in early November, my phone began ringing non-stop and email notifications started pinging like popcorn. If you work in Human Resources, you may know what I mean because it is likely your phone and email were ringing first.

HR clients were sending the messages on behalf of their foreign national workers and students who were asking if they could travel. Questions like “Can I go home for Christmas?” and “Is it safe to travel home in late November?”

Unfortunately, while the easing of restrictions is welcome, it is not a universal green light for foreign national travel.

How US Travel Restrictions Are Easing

The Biden administration announced that beginning in early November, they would lift the travel bans on international travelers from 33 countries: the Schengen area which includes 26 European countries, as well as China, Iran, India, Brazil, the U.K., Ireland, and South Africa. The bans have been in place since March 2020.

Instead, international travelers will be required to show proof they are fully vaccinated against COVID-19 and they tested negative for the virus within three days of boarding their flight to the US. The Center for Disease Control (CDC) will issue guidelines on which vaccines will be accepted.

This is welcome news. The change replaces country bans with travel consideration on an individual basis, with guidelines designed to deter the spread of COVID-19.

Questions That Remain Unanswered

While the country bans have been in effect, individuals traveling to the US have needed to demonstrate a national interest exemption. Some qualifying exemptions have included researchers for the COVID-19 vaccine, medical workers, essential services, supply services, and spouses of U.S. citizens. The administration has not said whether visa holders will still need to show a national interest exemption.

Many embassies and consulates closed during the pandemic. Some, like the embassy in Norway, have limited visa appointments for residents of Norway with emergency humanitarian cases and national interest exemptions. Collectively, US embassies and consulates have a backlog of at least half a million nonimmigrant visa petitions.

The Department of State, which runs US embassies and consulates, has not said when all of them will reopen nor have they addressed how they will process the backlog.

What We Can Say Now

The ban-lifting announcement signals that casual travel – like trips for holiday gatherings and vacations, for example – will return for vaccinated international travelers. The silence on reopening embassies and consulates and processing the visa-petition backlog indicates that visa appointments may be hard to get. Everyone who has applied for a visa while embassies and consulates were closed has a place in line before the casual traveler. In addition to the backlog, the Department of State said worldwide resources have been prioritized to help Afghani refugees relocate.

If you are a foreign national looking to travel in November and December – or even further out – you should not expect a quick response or visa appointment. You may not get an appointment within your desired timeframe.

Being apart from family and friends for so long takes a toll. I can understand the rush to visit home. But it is not worth risking being stuck outside the US, unable to return when you need to. If you can’t secure an appointment and get the travel approved, don’t go.

Given the administration’s early November timeline, I expect they will issue more information soon.

H-1B Filing Season: Time to Review Visa Status Expirations for Foreign National Employees

Contributed by Jacqueline Lentini McCullough, March 1, 2021

USA visa in a passport – travel background

With H-1B season upon us, it is time to review the visa status expirations for foreign national employees. There may be some who will need to change visa status to H-1B for continued employment with your company. For example, an F-1 international student who is employed based on his/her optional practical training may need H-1B sponsorship. Now is the time to see if anyone will need assistance with an H-1B petition. 

As you know, last year USCIS implemented a new electronic registration system for employers seeking to file H-1B cap-subject petitions for their foreign national employees. If your company already has an account in the database, you will only need to register any new foreign nationals for purposes of being selected to file an H-1B petition during the registration period. The registration period begins March 9th and closes March 25, 2021. Once the registration period is over, USCIS will then run a random selection process on those electronic registrations. Only those with selected registrations will be eligible to file H-1B cap-subject petitions. Following the selection process, employers will have a 90-day window to file  a petition for each registration selected. If insufficient H-1B cap-subject petitions are received by USCIS from the initial selected registrations then they may conduct a second lottery as was done in August 2020.

As we get closer to the H-1B registration dates, we will provide further guidance on the process of registering your foreign nationals. In order to meet the registration deadline, it is important to assess who among your foreign nationals will need a change of status to H-1B and will need to be registered in the government system as soon as possible.

Biden Changes Immigration Outlook, H-1B Visa Details TBD

Contributed by Jacqueline Lentini McCullough, February 3, 2021

Immigration Law books with a gavel on desk in the library.

 Last November I mentioned that the Trump Administration enacted over 400 immigration policy changes during its tenure. The changes added burdens to visa petitions, delayed processing, and made life more challenging for everyone in the immigration community.

Executive Order Highlights

President Biden signed a slew of prepared executive orders when he took office. Some of the orders that affect the immigrant community include:

  • the preservation and plans to “fortify” the Deferred Action for Childhood Arrivals (DACA) program;
  • cessation of border wall construction; and
  • a halt to former President Trump’s plan to exclude noncitizens from the census and the apportionment of congressional representation.

President Biden used his executive orders to stop or reverse President Trump’s executive orders, but knew that to make more permanent changes to U.S. immigration policy he would need legislative support. He delivered his bill, the U.S. Citizenship Act of 2021, to Congress on his first day seeking those changes.

U.S. Citizenship Act of 2021

This bill would modernize the country’s immigration system with a major overhaul. The new system would provide a path to citizenship for undocumented immigrants and reform both family-based and employment-based immigration policies.

Dreamers, Temporary Protected Status (TPS) holders, and farmworkers could apply for green cards immediately and for citizenship after three years. Other unauthorized immigrants could apply for temporary legal status immediately, for green cards after five years, and for citizenship if they qualify three years later.

The bill would eliminate the 3-year and 10-year unlawful presence bars that kept families apart. Measures would be put in place to eliminate family-based immigration backlogs, to reduce wait times, and to recapture lost visas.

Similar measures would occur for employment-based immigration to eliminate backlogs, reduce wait times, and recapture lost visas. H-1B holders’ spouses would get employment authorization and their children would be protected from aging out of the system.

The H-1B 2022 Filing Season

The Biden administration will need time to review individual policies and procedures to make further changes. This applies to the upcoming H-1B lottery.

We don’t yet know if USCIS will stay with the March 1 lottery application deadline used last year, or push the deadline later. We suspect they will use the electronic filing system instituted last year because we have not heard otherwise and it seemed to go smoothly. But we don’t know.

We are waiting to hear what the administration will do with the regulation for higher wages to be favored in the employer registration selection system, which was issued on January 8, 2021 and is slated to go into effect on March 9.

Despite all this uncertainty, the H-1B lottery will happen this spring.

What to Expect on Immigration from the Biden Administration

Contributed by Jacqueline Lentini McCullough, November 25, 2020

11411781 – photograph of a u.s. department of homeland security logo.

The Trump administration has enacted more than 400 immigration policy changes. That’s one change every 3.65 days the administration has been in office.

Weary from the whiplash of changes and weight of additional work, many are wondering how President-Elect Joe Biden will approach immigration policy.

Here are my thoughts on four issues affecting clients:

The Quickest Change Will Likely Be Better Visa Processing Times

COVID-19 will still slow processing as many U.S. Citizenship & Immigration Services (USCIS) employees are working from home. But without the anti-immigration winds that have been blowing from the White House, USCIS staff will be free to consider petitions in a timely manner.

Look for application and petition processing times to return closer to the six to eight months they used to take, instead of the one to two years they have reached recently.

Student Duration-of-Status Rule Change

For decades, student visas have been granted for a “duration of status” in a nod to the different lengths of time international students require to finish their degrees in the United States. Times vary by degree – bachelor, masters, doctoral.

Sometimes students require extra time to complete their degrees due to the need for certain classes, participation in research, and the challenges of academic rigor and studying away from home. Illness can sometimes play a role too.

On September 25, 2020, the Trump administration published a new rule in the Federal Register to change student visas to a fixed duration of not more than four years.

The rule change would force many students to file for extensions to complete their degrees, creating much extra work and expense. The current fee to file for an extension is $370. Some students might need to file more than once.

The change would also give the Department of Homeland Security (DHS) officials the power to deny extensions to students they deem unwilling or unable to complete their course of study. Usually academic institutions make those determinations.

The rule’s comment period ended October 26, 2020. It is unclear whether this rule will move forward. Even if it does, there is hope that the Biden administration will reverse it.

H-1B Wage Level Changes

On October 8, 2020, the Department of Labor issued an Interim Final Rule (IFR) entitled “Strengthening Prevailing Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States.”

IFRs fast track changes as they allow rules to become final upon publication instead of waiting for the usual public comment period.

The rule aims to restrict H-1B visas to the most highly-skilled workers and raises each wage level substantially. Level 1 increased by 17 percent, level 2 rose by 24 percent.

Those increases preclude most entry-level jobs from qualifying, making it difficult for recent graduates to find work and stay in the U.S. They also increase costs to any company who use or rely on H-1B workers.

Three lawsuits are challenging the rule, led by the U.S. Chamber of Commerce, Purdue University, and ITServe Alliance. The lawsuits and the new administration may prompt some mitigation of this rule. As it has bipartisan support, I don’t expect it to be struck down entirely.

Public Charge Rule

On October 10, 2018, USCIS filed a public charge rule change in the Federal Register to allow immigration officials to deny green cards to immigrants on any form of public assistance, including food stamps, Medicaid, and public housing vouchers. Applicants already have to prove they are not a public charge, but the new rule expands the number of benefits DHS could use to deny a green card. Additionally, compliance with the rule requires applicants to fill out an 18-page form (I-944), prove they have health insurance, and provide reams of other financial documentation. 

Numerous legal challenges have delayed the rule, which went into effect on February 24, 2020. A federal judge in New York blocked the rule on July 29, 2020, saying nothing should impede immigrants from seeking testing and treatment for Covid-19.

On September 11, 2020 the Second Circuit Court of Appeals ruled DHS could resume enforcing the rule. On November 2, 2020, a federal court judge in Chicago struck the rule down, saying the Trump administration violated the Administrative Protection Act when they created it. Yet another judge stayed that injunction while the decision is being appealed. The Biden administration may drop the appeal and let the judge’s ruling that the rule was unlawfully created stand.

Navigating the U.S. Immigration Labyrinth Right Now

Contributed by Jacqueline Lentini McCullough, September 30, 2020

The U.S. immigration system has always been something of an obstacle course. Recent developments have made it more like an intricate labyrinth with detours, hidden delays, and dead ends if you are not careful. Here are some recent developments and how they are affecting visa compliance and processing.

USCIS Budget Crisis

USCIS is a fee-driven agency. Fees pay 96% of its operating costs. It claims the coronavirus has caused a devastating budget shortfall. For four months they threatened to furlough 13,000 of their 20,000 employees. Ironically, a congressional inquiry showed USCIS had a surplus for the fiscal year.

At the end of August, Joseph Edlow, Deputy Director for policy at USCIS, said the agency would avoid the furlough, but institute other cost-cutting measures. As a result, backlogs and wait times would increase.

While things did slow down for a couple of months at the beginning of the pandemic, the number of cases has rebounded to close to pre-pandemic levels.

Moreover, USCIS was set to impose a fee rate hike effective October 2nd that it began planning last November. On average the hike would have been a 21% increase. Just yesterday, September 29th, the new fee rule was halted entirely by the United States District Court for the Northern District of California’s Judge White.

COVID-Related Country Restrictions Extended Through December 2020

Health-related restrictions requiring American citizens and legal permanent residents who have traveled to certain countries to re-enter the U.S. through one of 15 specific airports have been extended through December 31, 2020. These countries include China, Iran, Ireland, the U.K., Brazil and the Schengen area, which covers 26 European countries.

A presidential proclamation that bans residents of those countries from entering the U.S. has also been extended through December 31, 2020. The president made this proclamation on the assumption that these people would compete for jobs that Americans would take given the economic strife in the country.

The ban includes a national interest waiver which makes exceptions for medical professionals supporting the effort to combat COVID-19, spouses of U.S. citizens, lawful permanent residents, and a few other select groups.

Creative Solutions Help and Change Frequently

Among the creative solutions is alternate travel routes to establish 14 days presence in a non-banned location. Recently these diversions have included Croatia, Serbia and the Bahamas.

The Bahamas has been so flooded with people that on September 1 they instituted new travel requirements that include proof of a negative COVID test within 5 days of arrival, an approved Bahamas health visa and mandatory “vacation in place” orders for up to the first 14 days there.

Mexico is still an alternate route option for now, but their U.S. embassy is one of the busiest in the world. With a decreased staff, travelers who qualify for exceptions find appointments take longer to get or are sometimes cancelled.

It is important to monitor daily which countries allow quarantine and can act as a U.S. gateway. With COVID-19 risk driving these restrictions, it is hard to know what the future holds.

It is likely that some of our current restrictions – at least the health-related ones – may be extended into 2021 as well. Foreign nationals may have to delay further trips to see family or to start jobs in the U.S.

Form I-9 Update – Employers May Accept an Alternative to an Employment Authorization Document in Light of Governmental Delays

Contributed by Sara Zorich, August 25, 2020

book with words immigration law and glasses.

On August 19, 2020, U.S. Citizenship and Immigration Services (USCIS) announced that due to delays in production of certain Employment Authorization Documents (EAD’s – Form I-766) that employees may use Form I-797, Notice of Action as valid List C #7 document for Form I-9 purposes. To be valid, the Notice of Action must have a notice date on or after December 1, 2019 through and including August 20, 2020. If an employee presents a Form I-797, Notice of Action as a List C document, then the employees MUST also present a List B document. The Form I-797, Notice of Action is NOT evidence of someone’s identity and cannot be used as a List A or List B document.

Employees may present and employers may accept the Form I-797 Notice of Action showing approval of the employee’s I-765 application as a list C document for Form I-9 compliance until December 1, 2020. By December 1, 2020, employers must reverify employees who presented a valid Form I-797, Notice of Action. Those employees can either provide a List A document or a different List C document for the reverification process.

Additionally, the Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) announced an extension to the flexibility policy for employers and workplaces that are operating remotely which we previously reported on this past March. The extension of the policy is valid through September 19.

Charting the Course for H-1Bs and Other Visas Through COVID-19

Contributed by Jacqueline Lentini McCullough, May 27, 2020

USA visa in a passport – travel background

U.S. Immigration laws and regulations have always required immigration attorneys to have a certain level of creativity to problem solve. Keeping current on regulation changes, combined with creativity, helped me navigate the paths to my clients’ goals even when they took unexpected turns.

The COVID-19 pandemic has taken creative problem solving and preparedness to a whole new level.

Here are six situations I am helping clients navigate.

Work-from-Home Effect on H-1Bs

U.S. Citizenship and Immigration Services (USCIS) is a traditional organization that has not caught up with some of the modern work world’s innovations. They prefer brick-and-mortar offices as evidence H-1B employees are working.

On a temporary basis, given our reality in many states, H-1Bs working from home is okay within certain parameters. However, if work from home were to become a permanent change, it could jeopardize their status.

Compliance for H-1B Employees Working from Home

H-1B employees working from home need to post the company’s Labor Condition Application (LCA) notice in their home for 10 consecutive days and complete the posting sheet. The posting sheet must then be sent to the employer and placed in the employer’s Public Access File.

Though this procedure sounds silly, it is important to comply with USCIS regulations.

Work and Pay Reduction Effects on H-1Bs

Clients have asked if they can reduce all of their employees’ hours by 20 percent to avoid work force reductions and have their H-1Bs remain in good standing.

The answer is it depends.

If a wage range was listed on the LCA, it will work.

Otherwise, pay reductions would still need to maintain the prevailing wage or risk violating Department of Labor (DOL) regulations and incurring fines. Pay reductions will require filing a new LCA.

Depending on the person’s salary, a ten percent reduction may not negatively impact the H-1B visa holder’s status.

Work Force Reduction Effect on H-1Bs

H-1B status is based on continuous employment during the visa’s duration. Loss of a job jeopardizes the visa. If terminated from the job, the H-1B employee has 60 days to find another one and to amend the H-1B before losing status.

Employers who decide to terminate an H-1B employee must notify the employee and USCIS and offer the employee the reasonable cost of return transportation.

Application Filing During COVID-19

We are in the midst of H-1B filing season and are continuing to file L-1s, Employment Authorization Documents (EADs) and green card applications on behalf of clients.

All applications require a “wet signature,” meaning the applicant signs with ink and there is evidence the application is original, like having an indentation on the reverse side where the pen was pressed into the paper.

For the moment USCIS is accepting copies of wet signatures, but I am having clients send the originals as well just to be ready for any inquiries. E-signatures are not the same and are not accepted.

USCIS’s preference for brick-and-mortar offices to show green card applicants are gainfully employed makes applying for a green card dicey right now. I’m advising clients who can wait to do so.

For others who may be nearing the end of their 6-year H-1B stay, I am helping them assemble the best application possible given the circumstances.

Travel During COVID-19

Many embassies and consulates have reduced or suspended visa processing services. Some posts are starting to accept appointments for late July/early August, such as the U.S. Embassy in London and the U.S. Consulate in Frankfurt.

Acquiring passport photos has become difficult. Walmart is now offering a service where you can upload photos taken following U.S. federal guidelines and they will print them for you to pick up.

Visa holder clients who had been planning to travel because their status was expiring have had to file with immigration because they can’t leave. Clients and their family members who have passports expiring soon have had to get extensions.

Visitors in the U.S. who came via the Visa Waiver Program (VWP), which allows citizens of participating countries to travel to the U.S. for up to 90 days without a visa, have had trouble securing travel for when their 90 days has expired.

The U.S. Custom and Borders Protection (CBP) issued guidance to ports of entry to grant these visitors a 30-day extension via a request for Satisfactory Departure. To avoid jeopardizing their ability to visit the U.S. in the future, VWP visitors need to request Satisfactory Departure before their 90 days expire.

As you can see, the intricacies of immigration regulations coupled with COVID-19 complications require diligence and creative problem solving to keep visa holders in status and applications in process.

DHS Relaxes I-9 Requirements for New-Hires Impacted by COVID-19 and USCIS Extends Timeframe for E-verify TNCs

Contributed by Sara Zorich, March 24, 2020

book with words immigration law and glasses.

Form I-9

On March 20, 2020, the Department of Homeland Security (“DHS”) announced that it would relax its “physical proximity” requirements associated with completion of Section 2 of the Form I-9.  Employers can take advantage of this relaxed standard ONLY IF the entire workforce is completely working remotely. If there are employees physically present at the employer’s worksite, there is no exception to the in-person requirement for reviewing original documents for the Form I-9.  However, note, DHS will look at the situation on a case-by-case basis if the employee cannot be physically present due to a quarantine or lockdown order. This relaxed standard will be applicable for a period of 60 days from March 20th or within 3 business days after the termination of the National Emergency, whichever comes first.

If the exception applies the employer must do the following to compete Section 2 of the Form I-9 within 3 days of the employee’s first day of work for pay:

  • Inspect the Section 2 documents remotely (e.g., over video link, fax or email, etc.)
  • Obtain, inspect, and retain copies of the documents
  • Complete Section 2

After normal business operations resume, the employee and employer must do the following:

  • Employee must bring in the original documents that were used to support the Form I-9 within 3 business days so the employer may review them.
  • After the employer physically reviews the document in person, they should enter “COVID-19” as the reason for the physical inspection delay in the Section 2 Additional Information field.
  • The employer should also add “documents physically examined” with the date of inspection to the Section 2 additional information field on the Form I-9, or to section 3 as appropriate.

As an alternative, an employer may designate an authorized representative to complete and sign Form I-9 on their behalf.  Note the employer is liable for that person’s actions related to completing the Form I-9 and Form I-9 compliance.


USCIS has established new temporary policies that apply to the E-verify process:

  • Employers are still required to create cases for their new hires within three (3) business days from the date of hire.
  • Employers must use the hire date from the employee’s Form I-9 when creating the E-Verify case. If case creation is delayed due to COVID-19 precautions, select “Other” from the drop-down list and enter “COVID-19” as the specific reason.
  • Employers may not take any adverse action against an employee because the E-Verify case is in an interim case status, including while the employee’s case is in an extended interim case status.

Further, on March 21, 2020, USCIS announced that it is extending the time frame to take action to resolve Social Security Administration (SSA) and DHS Tentative Nonconfirmations (TNCs) due to closures. The employer must notify the employee about their TNC result as soon as possible. After the employee is notified of their TNC and decides whether to take action to resolve the TNC, the employee should acknowledge the decision on the Further Action Notice, and the employer should notify E-Verify of the employee’s decision. Employees who choose to take action to resolve a TNC are referred to SSA and/or DHS.