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U.S. Citizenship and Immigration Services issued a policy guidance today clarifying that federal drug violations, including for marijuana, will generally prevent an individual from proving “good moral character” for purposes of naturalization, even where state law has decriminalized marijuana.
Key points:
Background: Ten states and the District of Columbia have decriminalized recreational marijuana, and 33 states have legalized medical marijuana. Canada legalized marijuana in October.
In June 2017, the USCIS broadened the permanent residency application to include questions about controlled substance violations of state, federal or foreign laws at any time in the past.
BAL Analysis: The policy guidance is a reminder of that marijuana use carries serious immigration consequences. In addition to being a bar to naturalization, violation of a controlled substance law is considered grounds for inadmissibility, which can affect eligibility for other immigration benefits including a visa, green card, or change of immigration status. Applicants should seek legal counsel for information and advice in individual circumstances.
This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.
Copyright © 2019 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@bal.com.
Once again—for the seventh straight year—the H-1B quota was reached in five days, triggering U.S. Citizenship and Immigration Services to embark on what has become an annual ritual: the random selection of petitions via lottery to fill the Congressionally mandated cap of 65,000 H-1B visas (plus an additional 20,000 for master’s degree candidates). This year, 201,011 petitions were filed, exceeding the totals in the past two years. The odds of being selected remain well below 50 percent, leaving roughly 100,000 eager, educated, innovative workers each year to find jobs elsewhere and contribute their talents in countries that have more efficient and welcoming immigration policies.
What could break this annual cycle of events that costs U.S. business considerable lost investment in time, money and talent-hunting? Congress could modernize our immigration laws so that visa issuance correlates with economic need.
Coinciding with the start of H-1B cap filing season on April 1, former Senator Orrin Hatch, with the support of some of the largest tech and other companies, released a report1 urging Congress to raise the caps on H-1B visas and provide other incentives to retain foreign graduates of U.S. universities, including a fast track to citizenship without needing to first obtain temporary H-1B status.
The H-1B system is long overdue for an adjustment. The cap of 65,000 visas was set when the H-1B category was established nearly 30 years ago, in 1990. Think about it. Before the Internet. Before the global economy. Before The Simpsons. Today’s tech industry that relies on H-1B workers was in its infancy in 1990. Since the H-1B was introduced, U.S. GDP has doubled, per capita GDP has risen 67 percent, and the number of businesses in the U.S. has increased by at least 28 percent.
There is precedence for increasing the number of visas during periods of strong economic growth. In 1999 and 2000, Congress raised the ceiling on H-1B visas to 115,000 to accommodate the demand for high-skilled workers, and from 2001 through 2003 Congress temporarily tripled the cap to 195,000 to meet labor needs resulting from an economic boom that was largely fueled by the tech industry. In 2004, however, the quota reverted to 65,000 and an additional 20,000 visas were added for H-1B candidates holding master’s degrees or higher from U.S. universities. For the last 15 years, these caps have remained unchanged.
Hatch, who as a senator repeatedly but unsuccessfully sponsored bipartisan legislation to raise the H-1B caps, asserts in the introduction to the report that choosing between more H-1B workers and protecting American workers is a “false choice” because the two are linked. “We must continue to attract overseas talent to sustain the very innovation that has made our nation the most prosperous in the world,” he says. Today, about 7.5 million jobs remain unfilled and 83 percent of U.S. companies report difficulty in filling open positions, while H-1B holders and U.S. employers, increasingly frustrated by the system, are looking to set up shop in other countries. The report calls for doubling the H-1B cap and opening up other routes for high-skilled workers to relieve chronic oversubscription of the H-1B program.
It’s time to modernize our system. In fact, it’s seven years overdue. The current business environment—economic growth, low unemployment, labor shortages, and intense competition for global talent—provides a perfect recipe for expanding the pool of high-skilled workers available to U.S. businesses. The only ingredient missing is political will.
Delya Ghosh is a Partner in the San Francisco office of Berry Appleman & Leiden LLP.
1 “Barriers to Recruiting and Retaining Global Talent in the U.S.,” Orrin G. Hatch Foundation and FWD.us, April 1, 2019, https://36shgf3jsufe2xojr925ehv6-wpengine.netdna-ssl.com/wp-content/uploads/2019/03/19-03-29-high-skilled-report.pdf
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.
U.S. Citizenship and Immigration Services has begun issuing the first batch of receipt notices for H-1B change-of-status petitions for fiscal year 2020 that requested premium processing at the time of filing.
USCIS announced April 11 that it had completed the lotteries to select H-1B cap petitions for adjudication after receiving 201,011 petitions in the first week of filing. Employers whose petitions were selected in the lottery will receive receipt notices and, if approved, employees may begin work in H-1B status Oct. 1.
BAL Analysis: BAL has begun receiving premium processing receipt notices via email for H-1B cap-subject change-of-status petitions. It t is still very early and it will likely take weeks before all receipt notices are issued, at which point USCIS typically announces completion of the issuance. Employers and employees should wait for mailed receipt notices before making travel plans, as email issues have occurred in the past. BAL will continue to report all developments as cap season progresses.
Priority-date cutoff dates for most employment-based categories will advance modestly next month, according to the Final Action Dates chart published in the May 2019 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 for May for all countries except El Salvador, Guatemala and Honduras, which will be subject to a March 8, 2016 final action date, and Mexico, which will be subject to an Aug. 1, 2018 date. In the EB-5 category, final action dates will remain current in May for all countries except China I5 and R5, which will be subject to a Sept. 22, 2014 final action date, and Vietnam I5 and R5, which will be subject to a Sept. 22, 2016 final action date.
Application Final Action Dates for Employment-Based Preference Cases:
U.S. Citizenship and Immigration Services confirmed that it will only accept employment-based adjustment-of-status applications based on the Final Action Dates chart in May. The Dates for Filing chart, also published in visa bulletin, will not apply.
U.S. Immigration and Customs Enforcement’s (ICE) Homeland Security Investigations (HSI) conducted a raid of a worksite in Dallas owned by a New Jersey-based tech company on April 3, arresting 280 employees suspected of working without proper documentation. The Department of Homeland Security called it the largest workplace immigration raid in a decade.
According to a government news release, HSI received tips that the company may have knowingly hired unauthorized immigrants, and initiated an audit of the company’s Form I-9 (Employment Eligibility Verification) records in January.
Last year, ICE significantly ramped up the number of I-9 audits, conducting 5,981 inspections in fiscal year 2018 compared with 1,360 inspections in fiscal 2017, a 340% increase. During a two-phased operation last summer, ICE issued more than 5,000 I-9 audit notices to businesses across the country.
Employers are required to complete and retain Form I-9 for all new hires in the U.S. to verify their identity and authorization to work in the U.S. and must reverify the employment authorization of individuals who have temporary forms of employment authorization. ICE initiates an I-9 audit by issuing a “notice of inspection” that requires the employer to produce I-9 forms for their employees and other supporting documentation within three business days. ICE agents then conduct an audit of the forms. If the inspection turns up violations, the employer will likely face civil fines. Employers have the opportunity to correct certain technical errors on their I-9 forms. An employer who is found to have knowingly violated the law may be subject to criminal prosecution as well as civil penalties.
In January 2018, the Justice Department increased its fine schedule for I-9 violations for those occurring after Nov. 2, 2015. Penalties for substantive and uncorrected I-9 violations range from $224 to $2,236 for each violation, depending on the percentage of noncompliant I-9 forms and whether the employer is a repeat offender. Penalties for knowingly hiring or continuing to employ an unauthorized worker range from $559 to $22,363 per violation.
BAL Analysis: Employers are encouraged to conduct a review and internal audit of their I-9 forms and practices to ensure that they are in compliance and that they are prepared in case of an audit by ICE. BAL can assist in the review process.
U.S. Citizenship and Immigration Services (USCIS) announced Thursday that it had completed the computer-generated lotteries to determine which H-1B petitions will be eligible for processing. The agency said it received 201,011 cap-subject H-1B petitions in the first week of filing and confirmed that it has received enough petitions to reach the cap of 20,000 visas set aside for individuals holding advanced degrees from U.S. institutions.
USCIS announced last week that it had received enough petitions to reach the 65,000 H-1B general cap for the 2020 fiscal year, but was still working at that time to determine whether the master’s cap had also been reached. This year, the agency reversed the order of the general and advanced degree lotteries to give advanced degree holders better odds of being selected for adjudication.
Employers whose petitions were selected will receive receipt notices and, if approved, employees will be eligible to begin work in H-1B status beginning Oct. 1, 2019, the start of the 2020 fiscal year. Petitions subject to the cap that were not selected in either lottery or that were received after the filing period closed on April 5 will be returned along with filing fees.
This was the seventh consecutive year that the H-1B cap was exceeded within the first week of filing. The number of petitions filed this year was up compared with the last two years. USCIS received 199,000 cap-subject petitions in 2017 and 190,098 in 2018.
While the filing period for cap-subject petitions has closed, USCIS will continue to accept H-1B petitions that are exempt from the cap. It will also accept petitions to extend the amount of time a current H-1B worker can stay in the country, to change the terms of employment for current H-1B workers, to allow current H-1B workers to switch employers, or to allow current H-1B workers to accept concurrent employment in a second H-1B position.
BAL Analysis: The number of H-1B petitions easily exceeded the H-1B cap again this year. The odds of success in the lottery remain relatively low, and companies may want to consider alternative visa options or overseas assignments for high-skilled employees whose petitions are not selected. Petitions that are selected may face close scrutiny. USCIS has dramatically increased H-1B denials and requests for evidence in recent years. Employers are reminded that USCIS only accepted concurrently filed premium processing requests for cap-subject H-1B change of status petitions and will begin premium processing on those petitions on May 20. For all other cap-subject petitions, USCIS will announce when premium processing will be available, expected June or later, at which time employers may upgrade petitions with premium processing requests.
With another busy H-1B cap filing season completed, U.S. companies are reminded that current policies toward high-skilled immigration remain both challenging and unpredictable. Recent changes this cap season continue to demonstrate a hard line toward the H-1B visa program. Yet, in recent months there has been talk of a possible softening of the administration’s position on high-skilled immigration.
President Trump and his advisors have prompted the speculation by sending mixed messages, frequently arguing that abuse of the H-1B program and use of foreign workers undercut American jobs, but more recently suggesting that the economy demands more skilled labor. During the State of the Union address, Trump said that he wanted legal immigrants to come to the U.S. “in the largest numbers ever.” Asked the next day to clarify this statement, he said that American companies moving production back to the U.S. will need to fill those jobs. Moreover, during a tour of the southern border in January to promote funding for additional border wall construction, Trump tweeted that reforms were in the works that would bring “simplicity and certainty” to H-1B workers and he also suggested expanded paths to citizenship. Furthermore, media reports following these comments have indicated1 that Trump’s senior advisor and son-in-law, Jared Kushner, is spearheading talks with businesses aimed at reforming corporate immigration and possibly increasing the number of foreign workers.
On April 5, at the end of the first week of filing, H-1B petitions once again exceeded the caps—for the seventh year in a row. At a time when the need for the H-1B cap to be raised is more apparent than ever, is an era of more business-friendly immigration policy about to begin? While businesses certainly hope this is the case, let’s look at the record.
In the past two years, policy changes have made the H-1B category more cumbersome and less predictable. Since January alone, U.S. Citizenship and Immigration Services pushed through a regulation that alters the H-1B cap selection process, introduced new biometrics procedures for H-1B dependents, suspended premium processing for many cap cases until June or later, and unveiled a data hub that will put employers’ use of H-1B visas within public purview. Other changes include tightening standards for H-1B “specialty occupation” eligibility, increasing anti-fraud investigations of H-1B employers, sharing information among government agencies about H-1B employers, expanding adjudicators’ discretion to deny petitions outright without first requesting additional evidence, raising the burden of proof for nonimmigrants (including H-1B workers) who seek to extend their visas, and requiring additional documentation for H-1B third-party placements.
The result of these policies is in the numbers. Approval rates declined significantly for H-1B visas, according to the most recent statistics by USCIS.2 H-1B approvals, which exceeded 95% in 2015, fell to 84.5% in 2018 and further sank to 75% in the first quarter of fiscal year 2019. The number of requests for evidence, issued in less than 25% of H-1B cases in 2015, rose to 38% in 2018 and 60% in the first quarter of fiscal 2019. Approvals of H-1B cases that were subject to RFEs also dropped more than 20 percentage points, from an 83.2% approval rate in fiscal 2015 to 62.3% in fiscal 2018.
One closely watched litmus test of the administration’s position on high-skilled immigration is the “H-4 EAD rule,” which allows certain H-4 spouses of H-1B workers to obtain employment authorization to work legally in the U.S. For some time, the Department of Homeland Security has indicated that it plans to rescind this Obama-era rule but has repeatedly delayed issuing a new regulation. Immigration observers have said that if the administration intends to change policy direction, it might rethink rescinding this popular regulation, which has benefitted about 100,000 individuals, mostly college-educated women who are spouses of high-skilled workers from India. In late February, however, the agency signaled that it has no intention of changing course, sending the proposal to the Office of Management and Budget for review – the last step before a proposed regulation is officially published. Then, on April 1, DHS confirmed in a court filing that a regulation to remove H-4 spouses from those eligible for employment authorization is “expected to shortly be issued.” A rescission rule is imminent.
And now, in an apparent effort to further the administration’s restrictive agenda, a shake-up in the leadership ranks at DHS is underway. Vowing to take the agency in a “tougher direction,” Trump last week withdrew the nomination of Ronald Vitiello for the role of director of Immigration and Customs Enforcement. (Vitiello had been serving as acting director.) Then, over the weekend, DHS Secretary Kirstjen Nielsen resigned. The administration is reportedly considering the removal of other key DHS leaders, including Lee Francis Cissna, director of USCIS.
What should U.S. companies make of recent statements that conflict with the administration’s track record? While Trump and his advisors may be opening up a new debate and consulting U.S. companies in the decision-making process, there is currently no evidence that more welcoming policies are on the way. The policies of the past two years have purposefully targeted high-skilled immigrants and the employers who need them. Actions speak louder than words, so until the administration takes concrete steps in a new direction, U.S. companies should expect more of the same.
Susan Wehrer is a Partner in the Walnut Creek office of Berry Appleman & Leiden LLP.
1 “Jared Kushner privately working on reshaping legal immigration,” McClatchy, Feb. 20, 2019,https://www.mcclatchydc.com/news/politics-government/white-house/article226462025.html 2 Immigration and Citizenship Data, U.S. Citizenship and Immigration Services, https://www.uscis.gov/tools/reports-studies/immigration-forms-data
IMPACT – MEDIUM
Biometric enrollment services are currently suspended for U.K. visa applicants at USCIS Application Support Centers.
Analysis & Comment: Little information is available about what caused the suspension, but the statement on VFS Global’s site says said officials are working “to restore service as soon as possible.” Depending on the urgency of travel plans, applicants may wish to complete biometrics enrollment for an additional charge at one of the VFS application centers. Those affected are encouraged to contact their immigration provider to discuss their best options.
Source: Deloitte LLP. Deloitte LLP is a limited liability partnership registered in England and Wales with registered number OC303675 and its registered office at 1 New Street Square, London EC4A 3HQ, United Kingdom.
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: Applications filed in December and earlier are now being adjudicated, according to the department. Audit reviews are being conducted on applications filed in September and earlier, and appeals filed in December and earlier are being reviewed for reconsideration.
Average PERM processing times in March:
PWD Processing: The National Prevailing Wage Center is currently processing requests filed in December and earlier for H-1B and PERM cases. Redeterminations are being considered on appeals filed in March and earlier for H-1B cases and January and earlier PERM cases. Center director reviews are being conducted on appeals filed in February 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 March:
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 December and earlier and is seeing PWDs for requests filed in December and earlier as well.
U.S. Citizenship and Immigration Services (USCIS) has opened the re-registration period for holders of South Sudan Temporary Protected Status (TPS) who want to maintain their status through the extension period. The Secretary of Homeland Security extended the TPS designation for 18 months ending Nov. 2, 2020.
Background: South Sudan was originally designated for temporary protected status on Nov. 3, 2011 owing to ongoing armed conflict, and was re-designated for TPS status on Sept. 2, 2014 and again on Jan. 25, 2016. The designation was extended on Sept. 18, 2017, and on March 8, 2019, it was extended again for 18 months, through Nov. 2, 2020.
BAL Analysis: Eligible South Sudan TPS beneficiaries should re-register as early as possible. Employers should be aware of the extension of the designation through Nov. 2, 2020 and the automatic extension of existing EADs through Oct. 29, 2019.