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On March 30, the State Department published new Foreign Affairs Manual (FAM) guidance for consular officers that changes the standard of proof for blanket L adjudications and is likely to increase the refusal rate for multinational companies with blanket L visa programs.
The previous guidance advised consular officers that L-1 visa adjudications based on blanket petitions should be determined on the basis of the “preponderance of evidence.” The revised FAM now places a higher burden on applicants, requiring them to demonstrate eligibility beyond a doubt. The new language instructs consular officers: “If you have any doubt whether an applicant has fulfilled his or her burden of proof, you must deny the visa.” 9 FAM 402.12-8(F).
The new guidance appears to be in line with the directives from the Trump administration to increase the restrictions on issuance of employment-based visas, both under the “Buy American and Hire American” executive order, which called for “rigorous enforcement” of immigration provisions relating to workers, and the “extreme vetting” directive on visa applications in the March 6, 2017 White House Memorandum “to rigorously enforce all existing grounds of admissibility and to ensure subsequent compliance with related laws after admission.”
As a result of these directives, companies have experienced a marked decline in L approvals, especially at U.S. consulates in India, where the number of L-1 visas issued declined from 51,981 to 41,523 from fiscal year 2016 to 2019—a 20% drop.
The new guidance not only increases the burden of proof—it may also make it harder for applicants to overcome consular officer concerns over visa eligibility. The new instructions give consular officers discretion over whether to even allow the applicant to present new evidence, and require that any new evidence be presented in the first visa interview, which would preclude consular officers from allowing the applicant to return in a later interview with new evidence:
If based on the applicant’s documentation, you have a reasonable basis for believing that the applicant has not provided sufficient proof that his or her application should be approved, you may give the applicant the opportunity to respond to questions or issues that may be quickly or easily resolved during the interview. However, if the questions or issues cannot be resolved during the interview, then you should deny the case per 9 FAM 402.12-8(G).
This is not the first time the State Department has attempted to strengthen standards for blanket L petitions. Last October, it quietly inserted language into the FAM that replaced the “preponderance of the evidence” standard with a “clear and convincing evidence” standard, but it withdrew this change the following month. This time, the department has come out with even stronger language, further raising the stakes for companies and requiring they prove visa eligibility to a near certainty. Companies that rely on blanket L visas to move personnel to U.S. operations should consult counsel to ensure that applications meet this new standard and to strategize around the likelihood of higher denial rates.
Jeffrey Gorsky is Senior Counsel in the Washington, D.C., office of Berry Appleman & Leiden LLP.
The information contained herein is meant to be informational, and while BAL has made every effort to ensure the accuracy of the information, it is not promised or guaranteed to be complete. Readers of this information should not act upon any information contained in this alert/blog without seeking professional counsel. This alert does not constitute legal advice or create an attorney-client relationship. Any reference to prior results does not imply or guarantee similar future outcomes.
U.S. Citizenship and Immigration Services (USCIS) released an announcement today reiterating legal requirements for applying for an extension or change of status and reminding applicants of its discretionary authority to excuse late filings. The agency did not announce any new policies or measures to provide flexibility to foreign nationals who are unable to depart the U.S. upon expiration of their status due to the COVID-19 emergency.
Key Points:
BAL Analysis: USCIS has provided a reminder to employers and applicants of requirements to file an extension or change of status, and its existing authority to excuse late filings on a case-by-case basis. The announcement also clarifies that VWP entrants may request satisfactory departure, but does not provide guidance for work-authorized nonimmigrants who are in the U.S. and do not have the option to apply for EOS or COS. The most up-to-date information about USCIS’s response to the COVID-19 pandemic can be found on the agency’s website.
This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.
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U.S. Citizenship and Immigration Services (USCIS) announced today in a stakeholder message that H-1B processing will be delayed for fiscal year 2021 cap season because of COVID-19-related health protocols. A 90-day filing period began April 1.
Key dates and information:
BAL Analysis: Employers should plan for delays in H-1B cap receipt notices of at least several weeks, and should prioritize time-sensitive filings when meeting the filing deadline of June 30. USCIS suspended premium processing until further notice earlier this year and the agency indicated today that it is not planning to extend the 90-day filing window. H-1B cap-subject petitions must be filed during the filing window indicated in the registration selection notice.
BAL has confirmed that the Vermont Service Center of U.S. Citizenship and Immigration Services has reopened today after closing temporarily for potential COVID-19 exposure.
Key points:
The Labor Department has posted processing times current as of March 31 for permanent labor certification (PERM) applications and prevailing wage determination (PWD) requests.
PERM Processing: As of March 31, the department was adjudicating applications filed in November and earlier, conducting audit reviews on applications filed in June and earlier, and reviewing appeals for reconsideration filed in February and earlier.
Average PERM processing times in March:
PWD Processing: The National Prevailing Wage Center was processing PWD requests filed in December and earlier for H-1B cases and for PERM cases. Redeterminations were being considered on appeals filed in February and earlier for H-1B cases and for PERM cases. Center director reviews are pending for those filed in February and earlier for H-1B or PERM cases.
Average times for issuance of prevailing wage determinations in March:
The Labor Department reports PERM and PWD processing time frames on its iCERT page.
BAL Analysis: BAL’s internal case tracking is consistent with the Labor Department’s published processing times. BAL is seeing approvals for PERM applications filed in November and earlier, and is seeing PWDs for requests filed in December and earlier for H-1B cases and PERM cases.
BAL has confirmed that U.S. Citizenship and Immigration Services has temporarily closed certain operations at its Vermont Service Center (VSC) due to a possible COVID-19 exposure.
BAL Analysis: Unlike USCIS field offices and Application Support Centers, USCIS Service Centers do not provide in-person services and many officers responsible for adjudicating petitions at the Service Centers already telework. Therefore, a temporary closure of VSC operations will not necessarily affect processing or adjudication of cases that have already been filed. BAL is closely monitoring the situation and will provide updates as soon as guidance is available.
As employers implement social distancing in the workplace, work-from-home policies have raised questions about how companies can meet compliance requirements for H-1B employees, in particular how changes to an employee’s work location affects Labor Condition Application (LCA) requirements.
It was hoped that the Department of Labor would provide temporary measures allowing flexibility in LCA compliance for employers who are operating remotely during the COVID-19 crisis. But the agency’s latest guidance on April 9 not only fails to offer any new flexibility to current rules—its wording may create more confusion about employer compliance obligations.
In general, when an H-1B worker changes job sites to a new location outside the normal commuting distance, the employer must obtain a new LCA and file an amended H-1B petition. Under the “short-term placement” provision, employers may be eligible to place an H-1B worker at a new worksite outside the area of intended employment for up to 30 days per year, and in some cases 60 days, without obtaining a new LCA.
The DOL guidance may lead employers to misinterpret the rules, as it makes no mention of some key restrictions on the short-term placement option under the regulations. Companies may inaccurately assume that they do not need to obtain a new LCA for H-1B employees working from home and later be found to have violated their LCA obligations. Notably, the short-term placement rules do not apply to new worksites in an area of employment where the employer already has a certified LCA for the job classification. They also do not apply to initial H-1B placements. Since companies commonly employ more than one H-1B employee in the same area of employment, most H-1B employers will not be able to take advantage of the short-term placement provision during the COVID-19 national emergency. Additionally, employers whose new H-1B hires were unable to start work at the intended location because of social distancing policies would also not be able to avail themselves of the short-term placement rules.
Given the risks of noncompliance in these unusual times and the heightened enforcement environment in recent years that is likely to resume after the COVID-19 emergency, companies are encouraged to conduct a careful review of their H-1B employees’ place of employment, consult with counsel, and take steps to ensure that they are in compliance with all LCA conditions and requirements.
Eileen Lohmann is a Senior Associate in the Washington, D.C. office of Berry Appleman & Leiden LLP.
The information contained here is meant to be informational, and while BAL has made every effort to ensure the accuracy of the information, it is not promised or guaranteed to be complete. Readers of this information should not act upon any information contained on this alert/blog without seeking professional counsel. This alert does not constitute legal advice or create an attorney-client relationship. Any reference to prior results, does not imply or guarantee similar future outcomes.
The Department of Labor Office of Foreign Labor Certification (OFLC) published a third round of FAQ’s today in light of the COVID-19 pandemic. The FAQ affords companies no new flexibility regarding where H-1B beneficiaries may work during the COVID-19 pandemic.
BAL Analysis: Through this guidance, DOL has provided a reminder to employers of the existing short-term placement provision, but employers must be aware of its limitations and should consult with their BAL counsel before relying on it. BAL will continue to provide updates on additional guidance released by the government during the national emergency.
U.S. Customs and Border Protection (CBP) is reviewing requests from travelers in the U.S. who entered as visa-waived nationals under an Electronic System for Travel Authorization (ESTA) and are at risk of overstaying because of COVID-19 travel restrictions and lack of commercial flights.
BAL Analysis: ESTA travelers are reminded that even though they entered the U.S. on the visa waiver program, remaining in the U.S. beyond the departure date on their I-94 constitutes an immigration violation that carries consequences, including ineligibility for future ESTA travel. Travelers who are unable to depart on time because of COVID-19 travel restrictions or other emergency circumstances should avail themselves of the satisfactory departure process at an appropriate CBP location.
A lawsuit has been filed against the Department of Homeland Security seeking automatic extension of immigration status for foreign nationals and suspension of filing deadlines for immigration applicants in the U.S.
BAL Analysis: U.S. Citizenship and Immigration Services has taken modest steps to relax certain immigration rules during the national emergency, including for green card applicants, and the agency is expected to announce additional measures. BAL is closely watching the lawsuit and will report new developments as information becomes available.