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U.S. Citizenship and Immigration Services (USCIS) released new statistics last week on requests for evidence (RFEs) through the first three quarters of fiscal year 2019 (Oct. 2018 through June 2019) for H-1B, L and other categories.
Key points:
BAL Analysis: The most recent statistics confirm that USCIS continues to issue requests for evidence in H-1B and L cases at a rate higher than the previous four years. The spike in RFEs coincides with President Trump’s 2017 Buy American and Hire American executive order directing federal agencies to tighten visa eligibility. Employers should expect this trend to continue into the current H-1B cap season.
This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.
The Trump administration has rejected calls from lawmakers to designate Venezuela under Temporary Protected Status.
The TPS designation allows foreign nationals whose home country is undergoing extraordinary and temporary conditions such as natural disasters, political unrest or armed conflict, to remain in the U.S. and apply for employment authorization on a temporary basis. The designation is at the discretion of the Secretary of Homeland Security.
Responding to a March 7 letter by 24 U.S. senators urging the administration to make the TPS designation, the acting director of U.S. Citizenship and Immigration Services, Ken Cuccinelli, wrote on July 11 that the U.S. government is monitoring the situation in Venezuela and that there may be other immigration relief measures available to Venezuelans.
Two bills, H.R. 549 and S.636, have been introduced in Congress that would make TPS available to eligible Venezuelan nationals in the U.S.
BAL Analysis: At this time, Venezuelan nationals are not eligible for TPS benefits though there is support in Congress for the designation. Employers with Venezuelan employees on international assignments should be aware of the continued difficulty in obtaining documentation from Venezuelan authorities because of the ongoing crisis.
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U.S. Citizenship and Immigration Services has announced that next month it will only accept employment-based adjustment-of-status applications based on the Final Action Dates chart that was publish in the State Department’s August Visa Bulletin.
The Dates for Filing chart will not apply. Employment-based immigrants must follow the Final Action Dates chart (below) to determine filing eligibility. Only applicants with priority dates earlier than the dates listed in the chart will be permitted to file their applications for adjustment of status in August.
Application Final Action Dates for Employment-Based Preference Cases:
USCIS also announced that family-based immigrants will be permitted to use the Dates for Filing chart for most categories in August.
Just as barbecue and baseball are sure signs of summer, in the immigration world, decisions on H-1B cap cases are hallmarks of the summer months. While most companies will receive either an approval or rejection, a great many employers will also receive another type of notice: a request for evidence, or RFE. RFEs have surged since 2017 when the Trump administration directed government agencies to increase scrutiny of visa categories, particularly H-1Bs, as part of its long game to transform high-skilled immigration by shifting how policies are administered.
Pre-Trump, about one in five H-1B petitions received an RFE, but in fiscal year 2018 the odds of receiving an RFE increased to 38%, and in the six months ending March 2019, nearly half (48%) of H-1B petitions were hit with RFEs.1 In addition to issuing more RFEs, USCIS has introduced new RFE types, often focusing on certain job roles or eligibility criteria. For example, in 2017, RFEs focused heavily on computer programmers, and in 2018, all entry-level positions were under particular scrutiny. Common RFE grounds include proving the employer-employee relationship, establishing the employee’s qualifications for the job, and showing that the H-1B worker has properly maintained his or her immigration status.
What kind of RFEs are in the government’s lineup for 2019? USCIS provided some important insights in a stakeholders call in March. USCIS officers discussed their approach to RFEs, the type of information they are looking for, and examples of common pitfalls when responding to RFEs. Notably, during their discussion of H-1B eligibility, they did not mention “business” among eligible H-1B occupations. This omission suggested that H-1B candidates in business roles are likely to face enhanced scrutiny this season, and, indeed, the latest RFEs suggest that business-related degrees may be in the government’s strike zone. Such roles might include marketing professionals, analysts, and product managers—jobs that straddle technology and business but are not strictly related to STEM fields.
As in recent seasons, the government is requiring much greater detail about the H-1B candidate’s job duties, wages, qualifications, and how the role fits within the company’s business. Companies should plan for longer timelines to respond to RFEs, and managers and employees should be prepared to play a hands-on role in providing information to their legal teams. For example, counsel may need to ask an expert in the industry, such as a university professor, to write an opinion letter stating the educational qualifications required for the H-1B job and whether it qualifies as a specialty occupation. In cases where the acceptable degree for a job includes a general term, such as “engineering” or “business administration,” managers should be prepared to explain whether any degree under that general description would suffice, or whether only degrees with certain specializations (such as computer engineering, software engineering, and electronics engineering) would be acceptable.
At a time when RFEs play such a critical role in the adjudication process, BAL is continuing to innovate strategies to respond to them. In addition to working closely with managers and employees, we also leverage our own analytic tools to track trends in RFE types, responses and outcomes. Companies should be ready to respond and adjust to the new reality in which RFEs increasingly represent the keys to the game, as cap season enters the home stretch. Good preparation will make the H-1B process a little less stressful and the barbecue and baseball a bit more enjoyable.
Brittany L. Delbridge is a Staff Attorney in the San Francisco and Walnut Creek offices 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 Labor Department has posted processing times current as of June 30 for permanent labor certification (PERM) applications and prevailing wage determination (PWD) requests.
PERM Processing: Applications filed in May and earlier are now being adjudicated, according to the department. Audit reviews are being conducted on applications filed in December and earlier, and appeals filed in March and earlier are being reviewed for reconsideration.
Average PERM processing times in June:
PWD Processing: The National Prevailing Wage Center is currently processing requests filed in March and earlier for H-1B and PERM cases. Redeterminations are being considered on appeals filed in June and earlier for H-1B, and May and earlier for PERM cases. Center director reviews are being conducted on appeals filed in May and earlier for PERM cases. The department reported that it had no center director reviews pending for H-1B cases.
Average times for issuance of prevailing wage determinations in June:
The Labor Department reports PERM and PWD processing time frames on its iCERT page.
BAL Analysis: BAL’s internal case tracking is mostly consistent with the Labor Department’s published processing times. BAL is seeing approvals for PERM applications filed in May and earlier and is seeing PWDs for requests filed in March and earlier.
A federal district court has revived a lawsuit lodged in 2016 that challenges regulations allowing foreign students to be employed under Optional Practical Training (OPT) programs after graduating from U.S. colleges or universities.
Background: The 1992 regulation created a one-year OPT program for certain F-1 students. In 2008, a regulation introduced a 17-month STEM-OPT extension, and in 2016 that regulation was replaced by the current 24-month STEM-OPT extension.
Between the 2008 and 2016 regulations, a union of American tech workers (“Washtech”) brought the lawsuit arguing that DHS lacked authority to allow foreign students to be work-authorized and that the regulation unfairly disadvantaged American workers by increasing foreign competition for jobs. They also argued that the 2008 STEM-OPT extension was introduced without following required rulemaking procedures such as a notice-and-comment period.
The lawsuit has a complicated procedural history, and was dismissed entirely in April 2017. On appeal, however, the D.C. Court of Appeals reversed dismissal of one of the legal theories but remanded the case to the lower court to decide whether it could be revived. The lower court has now ruled that even though Washtech’s challenge of the 1992 OPT regulation is barred by the statute of limitations, DHS essentially “reopened” those claims when it issued its regulation in 2016.
BAL Analysis: The OPT regulation and STEM-OPT extension remain in place at this time, but the ruling raises the stakes considerably, in that the litigation now potentially threatens the entire OPT regulation. BAL is following the case and DHS regulatory priorities and will alert clients to any significant developments that affect the OPT program.
The U.S. House of Representatives passed a bill Wednesday that would remove the 7% per-country cap on employment-based green cards. The “Fairness for High-Skilled Immigrants Act,” H.R. 1044, passed with bipartisan support by a vote of 365-65.
Background: The sponsor of the House bill, Zoe Lofgren, D-San Jose, who has introduced the measure repeatedly since 2011, said after the vote that the bill would “provide relief to individuals who’ve waited patiently for a green card for years, if not decades, while they continue to work and contribute to our economy.”
Prospects in the Senate are uncertain. Last week, the Senate bill appeared headed for a vote after Mike Lee, R-Utah, reached a compromise with Chuck Grassley, R-Iowa, who had initially opposed the bill, by adding an amendment that would give the Labor Department new enforcement measures against H-1B employers. The bill was blocked, however, by Rand Paul, R-Ky., over an amendment he proposed that would create an exemption for foreign nurses.
BAL Analysis: The House vote is a promising sign of support for easing the green card backlog. The measure was able to gain bipartisan support in part because it would not increase overall green card numbers but would merely shift allocation of current immigrant visas. It is unclear, however, whether the Senate will debate or pass the measure and, if it does, whether President Donald Trump will sign it.
Priority cutoff dates will retrogress significantly in most employment-based categories next month, according to the Final Action Dates published Thursday in the August Visa Bulletin.
Key movements:
EB-1
EB-2
EB-3
Additional notes: The EB-4 category for religious workers (other than ministers) and the EB-5 Regional Center (I5 and R5) Immigrant Investor Program will be funded through the remainder of the fiscal year under the budget bill President Donald Trump signed in February. The EB-4 category will remain current in August for all categories except El Salvador, Guatemala and Honduras, and Mexico, both of which will be subject to a July 1, 2016 final action date. In the EB-5 category, final action dates will remain current in August for all categories except China I5 and R5, India I5 and R5 and Vietnam I5 and R5. These categories will have a final action date of Oct. 15, 2014.
The State Department also released its Dates for Filing chart for August. Applicants seeking to file for adjustment of status are reminded that the chart does not take effect unless U.S. Citizenship and Immigration Services confirms that it does so via a web posting in the coming days. BAL will update clients once officials say whether the chart can be used in August.
BAL Analysis: The retrogression is likely temporary, with many categories that are were previously current expected to become current again at the beginning of the next fiscal year on Oct. 1.
U.S. Citizenship and Immigration Services has released its annual statistical report, which shows declining rates of approvals across the board from fiscal year 2017 to 2018.
Key figures:
Approval Rates
BAL Analysis: The statistics confirm that since the “Buy American and Hire American” executive order in 2017, approvals of most types of immigration benefits have trended downward.
The U.S. Supreme Court has agreed to decide whether the Trump administration’s termination of the Deferred Action for Childhood Arrivals program was lawful. The DACA program provides temporary protection from deportation for undocumented individuals who were brought to the U.S. as children. Approximately 700,000 “Dreamers” have benefited from the program, which includes eligibility to apply for two-year renewable employment authorization documents.
The Trump administration announced in September 2017 that it would eliminate the program as of March 2018. Lawsuits immediately challenged the decision, arguing that the announcement terminating the program ran afoul of rulemaking procedures required by the Administrative Procedure Act and violated the Constitution’s due process and equal protection provisions.
Two federal appeals courts have ruled against the government, requiring the Department of Homeland Security to continue to renew DACA applications for current recipients while the litigation progresses. The rulings do not require DHS to accept new applicants.
When the administration terminated the program in 2017, it suggested that the then-Republican-controlled Congress would find a permanent fix for Dreamers, but efforts have repeatedly failed in the past two years. Earlier this month, the now Democratically controlled House passed the American Dream and Promise Act of 2019, which would provide 10-year conditional green cards to Dreamers and a path to permanent residency and citizenship thereafter. The bill has not been put to a vote in the Senate, where its prospects remain uncertain.
The Supreme Court has repeatedly declined the government’s request to expedite the case. The court will hear arguments next term, which begins Oct. 7, and a decision may come as early as next spring.
BAL Analysis: Business leaders represented by the Coalition for the American Dream reacted to the court’s decision to take up the case by urging the Senate to find “a bipartisan path forward” and pass legislation to permanently protect Dreamers. The organization issued a statement citing overwhelming public support of Dreamers and economic research on the significant negative impact to job creation and the American economy if Congress fails to act. The Supreme Court’s decision to hear the case does not change the current status of the DACA program, in which DHS is required by court order to renew documentation for current DACA enrollees. Employers should continue to accept valid employment authorization documents from these individuals.