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U.S. Citizenship and Immigration Services (USCIS) has issued a policy memo that adopts a case involving the H-1B master’s degree cap as binding guidance to be followed by USCIS officers.
The case, Matter of A-T- Inc, clarifies that in order for an individual to qualify for the H-1B cap exemption based upon a master’s or higher degree, the educational institution must have qualified as a “U.S. institution of higher education” at the time the beneficiary’s degree was earned.
Key points:
Background: The H-1B quota is set at 65,000 annually for individuals holding a minimum undergraduate degree, plus an additional 20,000 candidates who are exempt from the cap if they hold a master’s or higher degree from a “U.S. institution of higher education.” The statute defines that term as an institution that “is accredited” or “has been granted pre-accreditation status.”
The individual in the case earned a master’s degree on Dec. 31, 2010. The school received its pre-accreditation status in 2017. The H-1B employer argued that the employee qualified because he held the degree during adjudication of the H-1B petition. But the Administrative Appeals Office disagreed, interpreting the statute to require that the institution hold accreditation or pre-accreditation status at the time the individual is granted the degree.
The AAO noted that under this interpretation, the individual’s eligibility for the exemption does not change according to the institution’s accreditation status, and an individual may continue to qualify for the master’s exemption even if the institution later closes or loses its accreditation status.
BAL Analysis: The decision provides clarity on this issue. Employers should anticipate that USCIS will deny H-1B master’s cap exemptions to individuals if, on the date the degree is granted, the institution has not yet received accreditation or pre-accreditation.
This alert has been provided by the BAL U.S. Practice group. For additional information, please contact BerryApplemanLeiden@bal.com.
Copyright © 2017 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.
The Labor Department has posted processing times current as of May 31 for permanent labor certification (PERM) applications and prevailing wage determination requests.
PERM processing: Applications filed in March and earlier are now being adjudicated, according to the Labor Department. Audit reviews are being conducted on applications filed in November and earlier, and appeals filed in May and earlier are being reviewed for reconsideration.
Average PERM processing times in May:
PWD processing: The National Prevailing Wage Center is currently processing requests filed in March and earlier for H-1B cases and PERM cases. Redeterminations are being considered on appeals filed in March or earlier for H-1B and PERM cases. Center Director Reviews are being conducted on appeals filed in April for H-1B and PERM cases.
Average time for issuance of prevailing wage determinations in May:
The Labor Department reports PERM and prevailing wage determination processing timeframes on its iCERT page.
BAL Analysis: BAL’s internal case tracking is consistent with the Labor Department processing times. BAL is seeing approvals for PERM applications filed in March 2017 or earlier and is awaiting prevailing wage determinations for requests filed in March or earlier.
The State Department has rolled out a new set of questions for visa applicants who are subject to additional screening, including requests for applicants’ social media handles in the past five years and personal information dating back 15 years.
The questions were published in the Federal Register May 4 and the State Department sought emergency review by the Office of Management and Budget. The request was approved May 23 and remains in effect for six months. The administration could separately seek permanent implementation.
BAL has prepared an FAQ about the new questionnaire and the impact on visa applicants.
Read the full FAQ here.
The Trump administration has asked the Supreme Court to reinstate the president’s revised executive order to ban nationals of six Muslim-majority countries from entering the U.S. for a 90-day period. The petition, filed late Thursday, came after the U.S. Court of Appeals for the 4th Circuit ruled against reinstating the order. In a May 25 decision, the appeals court upheld a district court’s ruling to halt the implementation of the ban, saying that when taken in context of remarks from the president and his aides, the executive order “drips with religious intolerance” for Muslims.
In asking the Supreme Court to review the 4th Circuit’s ruling, however, Acting Solicitor General Jeffrey B. Wall said the appeals court engaged in the kind of “judicial psychoanalysis” that is foreclosed by case law when it speculated about the motivation behind Trump’s statements, many of which were made before he became president. “This Court has never invalidated religion-neutral government action based on speculation about officials’ subjective motivations drawn from campaign-trail statements by a political candidate,” the government’s petition said.
The March 6 order would prevent nationals from Iran, Libya, Somalia, Sudan, Syria and Yemen from traveling to the U.S. for a 90-day period except in cases where an exemption or waiver applied. It was signed after a broader executive order, issued in late January, also stalled in federal court. The revised version included exemptions for green card holders, visa holders and dual nationals. It also did not cover Iraqi nationals, who were included in the initial executive order.
Federal judges in Maryland and Hawaii ruled in March to stop the revised order from taking effect. The administration appealed both rulings. The U.S. Court of Appeals for the 9th Circuit heard arguments in the appeal of the Hawaii judge’s ruling, but has yet to issue a ruling.
BAL Analysis: For the time being, foreign nationals covered by the executive order may continue traveling to and from the U.S. as they could before the order was signed. The Supreme Court has been asked to review the 4th Circuit’s ruling, however, and could reinstate the order if it takes the case. Employers with personnel who would be subject to travel restrictions should continue to advise their employees to exercise caution when planning travel because the litigation is ongoing. BAL is carefully monitoring the situation and will continue to provide updates on important developments.
This alert has been provided by the BAL U.S. Practice group. For additional information, please contact BerryApplemanLeiden@bal.com. Copyright © 2017 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.
The International Entrepreneur Rule, which was finalized days before former President Barack Obama left office, has been sent to the Office of Management and Budget for further review. The additional review will likely delay the rule’s scheduled July 17 implementation and could signal the Trump administration’s intent to keep it from taking effect at any point during Trump’s presidency.
BAL Analysis: While the rule has not been officially scrapped, it appears increasingly unlikely that it will take effect during the Trump administration.
The United States Court of Appeals for the Fourth Circuit ruled Thursday not to reinstate President Donald Trump’s revised Executive Order to ban nationals of six Muslim-majority countries from entering the U.S. In a 10-3 decision, the court upheld a district court’s ruling to halt the implementation of the ban, saying that when taken in context the Executive Order “drips with religious intolerance” for Muslims.
“Congress granted the President broad power to deny entry to aliens,” the court said, “but that power is not absolute. It cannot go unchecked when, as here, the President wields it through an executive edict that stands to cause irreparable harm to individuals across this nation.”
The March 6 order would have prevented nationals from Iran, Libya, Somalia, Sudan, Syria and Yemen from traveling to the U.S. for a 90-day period except in cases where an exemption or waiver applied. It was signed after a broader Executive Order, issued in late January, also stalled in federal court. The revised version included exemptions for green card holders, visa holders and dual nationals. It also did not cover Iraqi nationals, who were included in the initial Executive Order.
The Trump administration had hoped the new order would survive judicial review, but federal judges in Maryland and Hawaii ruled in March to stop the revised order from taking effect. The administration appealed both rulings. The U.S. Court of Appeals for the Ninth Circuit is currently considering the appeal of the Hawaii judge’s ruling, but has yet to issue a decision.
BAL Analysis: For the time being, foreign nationals covered by the Executive Order can continue traveling to and from the U.S. as they could before the order was signed. The rulings so far have not reached the merits of the case, however, and an appeal to the U.S. Supreme Court is possible. Employers with personnel inside the U.S. who would be subject to the order should continue to advise their employees to exercise caution when planning travel because the litigation is ongoing. BAL is carefully monitoring the litigation and will continue to provide updates on important developments.
The Department of Homeland Security extended Temporary Protected Status (TPS) for nationals of Haiti for an additional six months this week, but also hinted that the designation could be discontinued upon the next review.
Key dates and deadlines:
Background: Haiti was designated for temporary protected status Jan. 21, 2010 following a 7.0 magnitude earthquake. Upon review, the secretary of Homeland Security determined that the country has made progress but still suffers the aftereffects of the earthquake as well as damage from Hurricane Matthew in October.
Details on reregistration for current Haiti TPS holders may be found at the USCIS website or in the Federal Register notice.
In the notice, the agency said that “during this six-month extension, beneficiaries are encouraged to prepare for their return to Haiti in the event Haiti’s designation is not extended again, including requesting updated travel documents from the Government of Haiti.”
BAL Analysis: Employers should be aware of the extension of employment authorization for eligible TPS holders. Individuals intending to extend their TPS status should do so as soon as possible to avoid lapses in their status and employment authorization.
IMPACT – MEDIUM
What is the change? Biometrics appointments for U.K. visa applicants in New York City, San Francisco and other biometrics hubs are currently booked up as much as three weeks in advance.
What does the change mean? While each case is different and some applicants may be able to book biometrics appointments more quickly than others, visa applicants should expect delays when applying for a U.K. visa in the U.S.
Background: The delays appear due to a rush on visitor and work visas as summer approaches. Delays may be particularly acute at main hubs, such as New York City and San Francisco, though applicants are advised to plan in advance and anticipate possible delays no matter where they are applying.
BAL Analysis: BAL is working with clients who may be affected to advise that employers may need to push back start dates or consider expedited options such as premium processing. Contact BAL with any case-specific questions.
This alert has been provided by the BAL Global Practice group in the United Kingdom. For additional information, please contact uk@bal.com.
U.S. Citizenship and Immigration Services has announced that in June it will only accept employment-based adjustment-of-status applications based on the Application Final Action Dates chart.
The Dates for Filing chart published in the State Department’s June Visa Bulletin will not apply. Employment-based immigrants must follow the Application Final Action Dates chart (below) to determine whether they are eligible to file their adjustment-of-status petitions with USCIS. 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 June.
Application Final Action Dates for Employment-Based Preference Cases:
Family-based immigrants will also be required to use the Final Action Dates chart applicable to family-sponsored immigrants, which was also provided in the June Visa Bulletin.
USCIS issued a new warning Tuesday, saying that scammers are altering their caller ID to make it look like they are calling from a Canadian immigration authority call center before seeking payment from immigrants in the U.S.
“The scammers tell people that their names and identities are under federal investigation,” USCIS said in an email notice. “Sometimes they tell individuals that there is a legal case, an affidavit, and/or allegations against them.”
USCIS urged anyone who receives a call demanding payment or personal information to hang up immediately.
Reminders:
BAL Analysis: Email, phone and web scams have become common in the U.S. and around the world. People should protect their personal information, including any relevant immigration-related details, and hang up if they receive suspicious calls or emails seeking personal information or demanding payment. Additional information on common scams and tips to avoid them is available at the USCIS avoid scams website.