Tag Archives: Immigration

U.S. Citizenship and Immigration Services Policy Challenged on Third-Party Worksites

Contributed by Jacqueline Lentini McCullough, June 7, 2019

A U.S. Citizenship and Immigration Services (USCIS) memorandum-issued policy is at the heart of a court case challenging recent H-1B visa denials.

The “Contracts and Itineraries Requirements for H-1B Petitions Involving Third-Party Worksites” memo was issued on February 20, 2018 without any notice or comment period required by the Administrative Procedure Act (APA). The memo directs adjudicators to ensure a contractor has actual and exclusive “control” of the contractor’s employees at the third-party site as a criterion for visa approval. This requirement comes from a rigid interpretation of the Department of Labor’s definition of “employer” which reads: “Has an employer-employee relationship with respect to employees under this part, as indicated by the fact that it may hire, pay, fire, supervise, or otherwise control the work of any such employee….” Instead of considering any one of these circumstances as qualifying, USCIS effectively changed the “or” to an “and,” requiring all of them.

H-1B visa denial rates skyrocketed the past two years, especially for contractors working at third-party worksites. Denial rates for initial H-1B petitions in Fiscal Year (FY) 2018 were 1 % for large technology companies but 34%-80% for companies that put H-1B visa holders at third-party sites. Third-party site work factors highly in IT consulting.

Visa Stamp

After having many H-1B visas denied or issued for short validity periods, several IT consulting firms filed lawsuits against USCIS. Those lawsuits have been consolidated into one under the aegis of the IT industry trade association ITServe Alliance.

Judge Rosemary Collyer presided over a court hearing of ITServe Alliance v. USCIS on 05/09/2019. Plaintiff attorneys produced data showing from FY 2012 to FY 2017, USCIS approved 94 % of their client’s ERP analysts’ H-1B petitions. During FY 2018 to FY 2019, the approval rate dropped to 19%.

Judge Collyer has taken issue with the disparate visa approval rates between different industries and USCIS’s requirement that contractors show three years’ worth of specific work assignments for H-1B petitioners when they are allowed “nonproductive” time as long as they are paid.

As Judge Collyer considers the case, she will rule on whether discovery is warranted to find out what has caused the different adjudications of H-1B petitions. Not only are H-1B approval rates markedly down for the IT industry, but requests for evidence and H-1B petition processing times have ballooned.

Requests for evidence (RFE) for all H-1B petitions have jumped from below 30% in first quarter FY 2017 to 60% in first quarter FY 2019. Meanwhile the number of petitions approved with a completed RFE has sunk from 80 % to just over 60 %.

Stay tuned as we will continue to provide updates as new information emerges.

H-1B Visas: What You Need to Know About Filing in 2019

Contributed by Jacqueline Lentini McCullough, January 30, 2019

The Department of Homeland Security (DHS) announced a proposed rule on November 30, 2018 that would require H-1B cap subject petitioners to register electronically with USCIS which would then conduct the annual H-1B lottery from the pool of timely-filed registrants.

The registration window would open 14 days before the H-1B filing window opens on April 1 and remain open for 14 days after that date. Petitioners selected during the lottery would be notified that they are eligible to file their petition and would have a 60-day window to do so.

book with words immigration law and glasses.

The proposed rule would also reverse the order that USCIS selects H-1B petitions under the H-1B cap and the advanced degree exemption. Currently the agency selects the advanced degree beneficiaries before filling the H-1B cap. Under the new rule, USCIS would count all applicants selected against the H-1B cap first, and then select the ones to receive the advanced degree exemption. Even with the reversal, those with advanced degrees will still have two chances in the lottery.

USCIS estimates that the proposed change would result in a 16 percent increase in the number of beneficiaries holding a master’s degree or higher from a U.S. educational institution.

The proposed rule was published in the Federal Register on December 3, 2018. USCIS accepted comments on it through January 2, 2019. On January 11, 2019, USCIS sent a final version of the proposed rule to the Office of Management and Budget (OMB) for review. The OMB completed its review on January 25th, and a final rule must be published in the Federal Register for it to take effect.

USCIS aspires to finalize and implement the new rule in time for the Fiscal Year 2020 filing season which begins April 1, 2019. Given that the OMB is scrambling in the wake of the shutdown, and the time it would take for the normal review process, it is uncertain that the proposed rule will apply this year.

What is true for this year is that H-1B petitions will require more strategic planning and upfront preparation than in prior years. Following the Trump Administration’s Buy American Hire American Executive Order on April 18, 2017, requests for evidence tripled for the past two years. I expect this level of scrutiny to continue for this year, too.

This means that we need to begin your application earlier, especially if you have never filed before. Companies filing for the first time need to apply to have the DOL verify their business and approve a Labor Condition Application (LCA) before they can file the H-1B petition. Each of those two processes takes at least 7 days.

2018 Immigration Updates

Contributed by Sara Zorich, January 16, 2018

Deferred Action for Childhood Arrivals (DACA) Renewals Resume
As of January 13, 2018, the United States Citizenship and Immigration Services (USCIS) has announced that, due to pending litigation and a federal court order, it is going to resume accepting and processing renewals for DACA recipients including Employment Authorization Documents granting work status.  This only applies to DACA recipients who had previously been granted deferred action status and USCIS is NOT accepting first time DACA applications.

USCIS has indicated the following:

  1. If the person previously received DACA and their DACA expired on or after Sept. 5, 2016, the person may still file a DACA request as a renewal request which includes a request for extension of the person’s work authorization.
  2. If the person previously received DACA and the DACA expired before 9/5/16, the person may file a new initial DACA request including work authorization.

Employers should check the USCIS website for additional information, but this is good news for employers and employees as employees on DACA now have an avenue to once again renew their employment authorization and legal work status.

Temporary Protected Status
On November 20, 2017, the Acting Secretary of Homeland Security announced the decision to end Temporary Protected Status (TPS) for Haiti.  The transition period is for 18 months and the TPS designation will end on 7/22/19.

On January 8, 2018, the Secretary of Homeland Security announced the decision to terminate the TPS designation for El Salvador.  Again, there is an 18 month transition period and the TPS designation will terminate on 9/9/19.

These announcements will eliminate the ability for individuals from Haiti and El Salvador to apply for employment authorization documents and work authorization based on their TPS status.

If a company employs an alien authorized to work, the company must keep track and monitor the date in which an alien’s work authorization expires.  These employees require reverification.  See USCIS Handbook for employers for more information about reverification of current employees.

How Will the End of the Deferred Action For Childhood Arrival (DACA) Affect Employers?

Contributed by Sara Zorich, September 14, 2017

On September 5, 2017, the Acting Secretary of Homeland Security rescinded the memorandum issued during the Obama administration that had established the Deferred Action for Childhood Arrival (DACA) program, announcing that it will be phased out over the next six months, allowing Congress time to craft a “permanent legislative solution.”

Ending DACA will affect not just the people covered under the program, but also thousands of employers nationwide. A controversial Obama-era policy, DACA has been a program where certain people who came to the United States as minors without documentation, yet met several guidelines, could request consideration of deferred removal proceedings and request authorization to live and work in the United States legally. Currently, the program shields around 800,000 young undocumented immigrants from deportation and allows them to work legally.

U.S. Citizenship and Immigration ServicesU.S. Citizenship and Immigration Services (USCIS) issued new guidance on their website as of September 5, 2017 regarding initial DACA requests and DACA renewals. Here are the key points to note:

  • DACA beneficiaries will not be affected until after March 5, 2018—six months from the date of the announcement
  • No new DACA applications will be considered, but applications filed by September 5, 2017 will still be processed
  • Current DACA recipients whose permits and or work authorization expires between now and March 5, 2018, have until October 5, 2017 to apply for renewal of these benefits

In light of this change, employers are recommended to review their Form I-9’s and identify any individual whose work authorization is going to expire on or before March 5, 2018. Employers should notify these employees of the date their work authorization will expire and remind them that the company cannot continue to employ the employee past this expiration date unless the employee is able to provide proof of continued work authorization. To reiterate, any DACA renewals must be filed no later than October 5, 2017 or USCIS will not process them. Read the USCIS announcement for details.

However, some Employment Authorization Document (EAD) categories (other than DACA) have been granted a 180 day automatic extension to the employee’s work authorization deadline. Visit the USCIS website for more information on the eligibility requirements for the Automatic Employment Authorization Document (EAD) Extension. Thus, employers must be careful to follow the applicable guidelines when addressing the proper end date of an employee’s work authorization and reauthorization requirements.

Final Takeaway: Employers must understand that they MAY NOT discriminate and cannot refuse to hire an individual solely because that individual’s employment authorization document will expire in the future.

We anticipate that Congress may now attempt to fast track some type of immigration reform related to those persons that were formerly covered under DACA, but only time will tell.

Executive Action on Immigration to Affect Millions

Contributed by Jacqueline Lentini McCullough

Did you watch the President address the nation live last week? On November 20, 2014, President Obama announced a series of executive actions, including cracking down on illegal immigration at the border, prioritizing deportation of felons (details of which are still unclear), and requiring certain undocumented immigrants to pass a criminal background check and pay taxes in order to temporarily stay in the U.S. without fear of deportation.

The initiatives include:

Deferred Action for Parents (DAP). Parents of U.S. citizens and legal permanent residents (LPR’s of any age) who have been continuously present in the U.S. since January 1, 2010, who pass background checks and pay taxes are eligible for deferred action (temporary relief from removal for a specified period of time) for a three year period;

Deferred Action for Childhood Arrivals (DACA) to be revised to expand the group it encompasses to include young people who came to the U.S. before turning 16 years old, and have been present in the U.S. since January 1, 2010. It will also remove the 31 year old age cap, paving the way for about 270,000 more people to apply. The work authorization permit will also be increased from two to three years;

-Permit Employment Authorization for H-4 Visa Holders. Currently dependents of H-1B visa holders are not permitted to work. Regulations will be finalized in early 2015;

Optional Practical Training. The length of time in OPT for Science, Technology, Engineering and Mathematics (“STEM”) graduates will be expanded, although no set time frame for this increase and associated regulations have been outlined;

Pre-registration for Adjustment of Status. Individuals with an approved employment immigrant petition who are caught in the quota backlogs will be able to pre-register for adjustment of status to obtain the benefits of a pending adjustment. This change is expected to impact approximately 410,000 people;

-I-601A Waivers. Waivers will be expanded to include spouses and children of LPRs;

Modernization and improvement of immigrant and nonimmigrant programs. Details on this are unclear;

-Enhancements to the Naturalization process; and

-U and T Visas. Three more types of offenses will be added to the list of offenses that can be certified by the Department of Labor.

Preliminary estimates show that approximately 4.9 million individuals may be eligible for the initiatives announced by the President, although there is no way of knowing how many individuals will apply. USCIS won’t begin accepting applications until approximately May 2015, and the new protections could be reversed by a new President. The bottom line is that the only certain provisions will have an immediate impact early next year, such as the DAP and DACA changes. Other proposed changes should be considered more along the lines of “Coming Attractions,” because they require regulations to be implemented. Limited details were offered during the President’s address to the nation, and in his subsequent Memoranda of November 21st.  Since the President’s briefing included business employment immigration reform, there is a reasonable expectation for improvements outside of the undocumented community as well.

 

Immigration Updates

Contributed by Sara Zorich

Since Congress has recessed for the holiday break, no immigration reform bills and/or comprehensive immigration reform bill is slotted for vote in 2013.  It appears that there will be a major push for the topic to be addressed during 2014.  We anticipate that mandatory E-Verify will be a component of any immigration bill passed, thus all employers must be cognizant of pending immigration reform.  We will keep you updated of the developments in 2014.

December has been a busy month for E-Verify updates.  The U.S. Citizenship and Immigration Services (USCIS) issued a number of announcements regarding updates to E-Verify policies and procedures:

  • There is a new page for employers on E-Verify that explains the role of E-Verify Monitoring and Compliance. (http://www.uscis.gov/e-verify/employers/monitoring-and-compliance) Employers should review this information and note that their usage of E-Verify is being monitored.  Suspected misuse or abuse of the program is being referred to appropriate agencies for enforcement.  Misuse/abuse of the program could lead to an employer to incur fines, back wage payments and/or debarment from the program.
  • On December 8, 2013, E-Verify released new Memorandums of Understanding (MOU) for those employers participating in E-Verify.  The revision date noted on the new MOUs is June 1, 2013.  The effective date of the MOU for new users is December 8, 2013.  Existing E-Verify employers/users do not need to execute a new MOU but are bound by the new or revised MOU that applies to their access method.  The effective date of the new MOU for existing users is January 8, 2014.  A copy of the new MOUs can be found at: http://www.uscis.gov/e-verify/publications/memos/publications-memorandums. Employers are encouraged to review the new MOU applicable to them to ensure they are aware of their new and continued obligations under the E-Verify program.
  • The E-Verify participation posters have been modified, requiring less ink while printing.  Employers currently enrolled in E-Verify do not need to print these new posters so long as they printed and have the prior versions posted in their workplace.  New employers signing up to E-Verify will be prompted to download, print and post the English and Spanish Notice of E-Verify Participation and the Office of Special Counsel Right to Work posters after enrollment and completing the online tutorial. Employers can access the posters after logging in to E-Verify.

DOMA is Dead – Implementation of the Supreme Court Ruling in U.S. Immigration

By Jacqueline Lentini McCullough

On June 26, 2013, the Supreme Court unequivocally affirmed there is no legitimate reason for the federal government to discriminate against married couples based on sexual orientation. The Defense of Marriage Act (DOMA) of 1996 defined marriage as a legal union between a man and a woman. The implication of the Supreme Court’s historic decision in the immigration context is that the U.S. must treat married gay and lesbian couples the same way it treats married heterosexual couples.

While many details of how the immigration process will be implemented are still uncertain, U.S. Citizenship and Immigration Services (USCIS) published Frequently Asked Questions (see www.uscis.gov) regarding same-sex marriage on July 2, 2013. A same-sex marriage can now be the basis for an immigrant visa for a spouse married to a U.S. citizen. In evaluating the petition, USCIS will look to the law of the location that the marriage took place to determine if it is a valid marriage for immigration purposes. The law of the state of residence must also be taken into account. Further fact specific circumstances may develop as federal immigration benefits are applied.