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U.S. Citizenship and Immigration Services has published an advance copy of a proposed rule that will introduce reforms to the selection process for H-1B cap petitions. The proposed rule is scheduled to be published in the Federal Register on Monday, commencing a 30-day public comment period.
Key points:
Online preregistration system. The proposed rule would create a mandatory preregistration system requiring employers who intend to file H-1B cap petitions to submit an online registration for each intended beneficiary petition during a designated registration period before April 1. USCIS would then conduct a lottery and select enough registrations to meet the H-1B cap numbers. According to the proposal, petitioners could therefore wait until they know a petition has been selected before filing the Labor Condition Application and the full H-1B petition.
Selection process. The proposed rule would reverse the order in which H-1B cap petitions are selected for adjudication. Under the current process, USCIS first determines if there is a sufficient number of petitions to reach the 20,000 advanced-degree exemption and conducts a random lottery on that population first, then adds unselected petitions to the second pool and conducts a lottery for the regular cap of 65,000.
Suspension clause. The proposed rule would allow USCIS to temporarily suspend the registration process during any fiscal year due to technical challenges with the registration process and/or the new online registration system.
BAL Analysis: The pre-publication version of the proposed rule contains changes to the H-1B lottery process that were included in the agency’s agenda in October. USCIS is working to implement the regulation and the necessary electronic registration system in time for the coming H-1B cap season, but acknowledged in the proposal that it may suspend the registration procedures. The proposed rule is expected to be published in the Federal Register on Monday. Employers and other immigration stakeholders are encouraged to submit public comments to the agency during the comment period that will open Dec. 3 and close Jan. 2.
This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.
Copyright © 2018 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.
U.S. Citizenship and Immigration Services issued a policy memo Thursday that sets out how adjudicators will calculate the eligibility requirement that L-1 intracompany transferee applicants must have been employed for one continuous year abroad within the preceding three years.
The memo clarifies that the three-year period will be counted back from the date of the initial L-1 application, not the date of admission, and that the individual must have been physically outside the U.S. during the continuous one-year period. It also explains circumstances under which the three-year period may be adjusted.
BAL Analysis: The policy memo clarifies definitions that previously resulted in inconsistent adjudications. Employers and individuals will need to ensure that they closely track an employee’s trips to the U.S. and other time spent in the U.S. during the relevant three-year period, as they may now affect the timing and eligibility for their L-1 petitions. This policy memorandum is now in effect, and will apply to all L-1 petitions filed with USCIS.
A regulation that would change the H-1B lottery system is expected to be proposed by U.S. Citizenship and Immigration Services any day now. The proposal has cleared review by the Office of Management and Budget, the first step in the regulatory process.
Background: USCIS has indicated several times that it intends to overhaul the H-1B lottery system, most recently in its semiannual regulatory agenda.
BAL Analysis: The proposed regulation is expected to be published in the Federal Register in the coming days and may take at least four months to become final. The publication of the proposed rule will initiate a public comment period and employers are encouraged to submit comments. Employers should anticipate that changes to the H-1B lottery are likely to affect the upcoming cap season and begin to plan now by identifying H-1B cap candidates and assessing eligibility.
BAL partner Lynden Melmed was quoted in a Forbes magazine article Monday on the new Labor Condition Application (LCA) form.
The new form requires petitioning employers to indicate whether a foreign worker will be placed at a client or third-party worksite and provide a legal business name and address for the third-party entity. The Forbes article questioned the purpose of this requirement, stating that such information is unnecessary unless the administration wants to discourage businesses from awarding contracts to companies that employ H-1B workers by threatening them with negative attention and bad press.
Melmed, who previously served as Chief Counsel of U.S. Citizenship and Immigration Services, noted that past administrations have not requested such information. “The immigration agencies have historically recognized that there are legitimate reasons why U.S. businesses may not want to disclose private contracts,” Melmed told Forbes. “The new disclosure requirement reflects a shift in priorities by the Department of Labor.”
Read the Forbes article here. A BAL FAQ on the new LCA form is available here.
The Department of Homeland Security has published a proposed rule that would expand its ability to deny visas or green card applications on the basis of a “public charge” determination. Specifically, the regulation would broaden the types of public assistance that could render an individual inadmissible. The rule is currently open for notice and comment until Dec. 10. If adopted, the rule would have a widespread impact, subjecting more than 382,000 green card applicants and 517,000 extension or change-of-status applicants each year to a public charge determination, according to DHS estimates. The proposed rule would greatly expand the scope of the public charge determination, applying it to most visa and green card applications and giving adjudicators authority to consider an applicant’s prior use of public benefits as well as likelihood of future public benefit use.
The term “public charge” has never been defined in a formal regulation. However, a 1999 guidance defined it as someone who is “primarily dependent” on public benefits for more than half of his or her income, and instructed adjudicators to consider only cash benefits or institutionalized long-term care in deciding whether someone is a public charge. Non-cash benefits are currently not considered, but that might change soon. Under the proposed rule, adjudicators could consider various non-cash federal or state benefits—including Medicaid, the Medicare Part D low-income prescription drug subsidy, the Supplement Nutrition Assistance Program (SNAP, formerly called “food stamps”), Federal Rental Assistance (Section 8 housing choice voucher program, Section 8 project-based rental assistance, and subsidized public housing), and benefits for institutionalized long-term care—as “heavily weighted negative factors” against the applicant. In addition, the proposed rule would allow adjudicators to look back to evaluate whether the applicant used these benefits within the three years immediately preceding the application, essentially establishing a presumption that even able-bodied applicants are ineligible if they received public benefits in the past.
In addition to the look-back provision, the proposed rule also emphasizes the forward-looking aspect of the law: If an adjudicator decides that the applicant is likely at any time in the future to receive one or more public benefits, the applicant would be inadmissible as a public charge. The new rule would apply both to first-time applicants and renewals. Individuals seeking to renew, change or extend their status may find themselves suddenly denied on public charge grounds. Adjudicators would have the authority to request a new Form I-944, or “Declaration of Self-Sufficiency,” and accompanying evidence, which would add a layer of uncertainty to previously predictable processes. U.S. Citizenship and Immigration Services estimates that it would take an average of 4½ hours to complete the form, and applicants would be required to provide credit reports and scores from one of the three major credit bureaus.
The rule, if finalized in its current form, will cause ambiguity around processing requirements and time lines for employers and individuals applying under legal immigration routes. Even individuals who have been residing in the U.S. and maintaining status for years may suddenly find themselves subjected to additional scrutiny or denials. It should be noted that the rule’s expanded definition of “public charge” would only apply to individuals who directly receive public benefits (benefits received by their family dependents will not count), and that the types of public benefits added by this rule would only count against visa eligibility if they are received after the effective date of the rule.
Employers are encouraged to comment before the Dec. 10 deadline.
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 offices across much of Northern California were closed Friday because of bad air quality stemming from a massive wildfire. USCIS field offices in San Francisco and Sacramento were closed, while Application Support Centers were closed in San Francisco, Sacramento, Oakland and Santa Rosa.
Applicants who had appointments for interviews or biometrics at closed USCIS field offices will automatically have their appointments rescheduled. Applicants who had InfoPass or other appointments scheduled are asked to reschedule them on their own as soon as possible.
The Camp Fire, north of Sacramento, is considered the largest and most destructive wildfire in California history. The U.S. Environmental Protection Agency air quality map shows “very unhealthy” air in San Francisco and throughout much of the Bay Area and “hazardous” air in Sacramento. Parts of Southern California have also been hit by serious wildfires in recent days, but all USCIS offices remain open in that part of the state for now.
BAL Analysis: An up-to-date list of USCIS office closures is available on this website, which also provides information on how to reschedule appointments that were canceled because of closures related to the air quality.
U.S. Citizenship and Immigration Services has announced that in December it will follow the State Department’s Dates for Filing chart, as published in the December Visa Bulletin, to determine whether applicants are eligible to file for adjustment of status.
Application Dates for Filing for Employment-Based Preference Cases:
Family-based immigrants will also use the Dates for Filing chart applicable to family-sponsored immigrants, which was also published in the December Visa Bulletin.
BAL Analysis: December will mark the third straight month in which USCIS will use the Dates for Filing chart. This is good news for a number of employment-based immigrants, as the Dates for Filing chart contains more progressive cutoff dates than the Final Action Dates chart, especially in EB-1 categories.
Priority-date cutoffs for most employment-based categories based on Final Action Dates will advance modestly next month, according to the State Department’s December 2018 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 were renewed last month by Congress under a temporary spending measure that funds Department of Homeland Security operations until Dec. 7, 2018.
Application Final Action Dates for Employment-Based Preference Cases:
The State Department also released its Dates for Filing chart for December. Applicants seeking to file for adjustment of status are reminded that the chart does not take effect unless U.S. Citizenship and Immigration Services (USCIS) confirms that it does via a web posting in the coming days. USCIS used the Final Action Dates chart for most of the last fiscal year, but used the Dates for Filing chart in October and November. This may reflect a new trend toward the earlier dates. BAL will update clients once the State Department confirms whether the Dates for Filing chart can be used in December.
Beginning Nov. 19, a new version of the Labor Condition Application for Nonimmigrant Workers (LCA, Form ETA-9035/9035E) will become mandatory for H-1B, H-1B1 and E-3 sponsors. Although the new version of the form has not been officially released, the Labor Department published a proposed version earlier this year that included several important changes. Among the changes, the petitioning employer will be required to indicate whether the foreign worker will be placed at a client or third-party worksite and provide the legal business name and address of the entity. The new form also requires additional information from H-1B dependent employers who rely on the master’s degree exemption. BAL has produced an FAQ to answer some common questions about the new form and its implementation. Read the full FAQ here.
A group representing some of the country’s largest and most powerful technology companies sent a letter to the Trump administration last week, calling into question the legality of U.S. Citizenship and Immigration Services’ adjudication of many H-1B visa petitions.
“The agency’s current approach to H-1B adjudications cannot be anticipated by either the statutory or regulatory text, leaving employers with a disruptive lack of clarity about the agency’s practices, procedures, and policies,” the group, Compete America, said in its Nov. 1 letter addressed to Secretary of Homeland Security Kirstjen Nielsen, USCIS director L. Francis Cissna and other high-ranking Department of Homeland Security (DHS) and USCIS officials. “This lack of certainty and consistency wreaks havoc among the nation’s employers which are hiring high-skilled Americans and foreign-born professionals.”
Compete America said that in the last 18 months companies have seen a dramatic increase in H-1B denials and Requests for Evidence (RFEs), and that more recently they have seen a sharp increase in the issuance of Notices of Intent to Deny (NOIDs) and Notices of Intent to Revoke (NOIRs). The group listed three trends that it said are legally problematic:
The San Jose Mercury News quoted a USCIS spokesman as saying that the administration has been “relentlessly pursuing merit-based policy and regulatory immigration reforms, including a thorough review of employment-based visa programs so they benefit the American people to the greatest extent possible” and that USCIS would “continue adjudicating all petitions, applications and requests fairly, efficiently, and effectively on a case-by-case basis to determine if they meet all standards required under applicable law, policies, and regulations.”
The Compete America letter marked the second time in the last three months where leading companies have criticized the Trump administration’s high-skilled immigration policies. In August, 59 CEOs signed a Business Roundtable letter expressing “serious concern” about immigration policy changes under President Trump.
“Inconsistent government action and uncertainty undermines economic growth and American competitiveness and creates anxiety for employees who follow the law,” the Business Roundtable letter said. “In many cases, these employees studied here and received degrees from U.S. universities, often in critical STEM fields.”