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U.S. Citizenship and Immigration Services recently issued a policy memorandum that reverses a long-standing presumption that the position of computer programmer qualifies as a specialty occupation. It also instructs adjudicators to review wage levels for H-1B candidates, signaling that it may be more difficult for an employer to prove that a job paying entry-level wages qualifies as an H-1B specialty occupation.
BAL has produced an FAQ on the new standards and what employers should expect.
Read the FAQ here.
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.
President Donald Trump intends to nominate Lee Francis Cissna as the new director of U.S. Citizenship and Immigration Services, according to a White House announcement Saturday.
USCIS, a division of the Department of Homeland Security, is responsible for processing immigration-related applications and petitions.
Cissna currently serves as director of immigration policy in the DHS Office of Policy. He previously worked in the Office of the Chief Counsel of USCIS, practiced corporate immigration law in Virginia, and served as a foreign services officer in the State Department, stationed in Haiti and Sweden. Cissna holds a law degree from Georgetown University Law Center, a master’s of international affairs from Columbia University, and a B.S. in physics and political science from Massachusetts Institute of Technology.
If confirmed, Cissna will replace James McCament, who has been the acting director since March.
U.S. Citizenship and Immigration Services announced Friday that the H-1B cap filing period has closed, as the number of petitions received has reached the congressional quotas for fiscal year 2018.
USCIS is required to accept H-1B cap petitions for at least five business days or until the quota is met—whichever is longer. This is the fifth consecutive year in which the H-1B cap has been reached in the first week of the filing period, leading to a random lottery process for selecting petitions that will be adjudicated. New H-1B visas are annually capped at 65,000 for undergraduate-degree holders with an additional 20,000 for individuals holding advanced degrees from U.S. institutions.
A lottery is expected to be conducted in the coming days after the agency completes initial intake of all filings. The lottery is conducted in two phases. First, petitions for individuals holding U.S. master’s degrees and higher are placed in a pool, from which 20,000 petitions are randomly selected. Unselected petitions from the first draw are put in a pool with the petitions for candidates holding undergraduate degrees or equivalent. In the second draw, 65,000 petitions are selected.
Employers whose petitions are selected will receive receipt notices and, if approved, employees will be eligible to begin work in H-1B status beginning Oct. 1, the start of the 2018 fiscal year. Petitions subject to the cap that are not selected or that are received after Friday will be returned with their filing fees.
The agency will continue to accept H-1B petitions that are not subject to the quotas, as well as H-1B extension applications, changes to the terms of H-1B employment, requests to allow H-1B workers to change employers, and requests to allow H-1B workers to work concurrently in a second H-1B position.
BAL Analysis: As anticipated, H-1B petitions exceeded the cap within the first week of filing. USCIS has not yet released information about how many petitions were received, but in recent years the odds of being selected have been well below 50 percent. BAL will continue to update clients as selection and processing progress. Employers and individuals are reminded that the suspension of premium processing of all H-1B petitions will remain in place for up to six months, and receipt notices are likely to be delayed.
IMPACT – MEDIUM
What is the change? VFS Global will assume responsibility for processing Dutch visa applications lodged in the United States.
What does the change mean? Effective April 17, those applying for Schengen or Caribbean visas should submit applications to VFS Global centers in Chicago, Houston, New York or San Francisco. Applications will no longer be accepted at the Dutch embassy or consulates.
BAL Analysis: The change may lead to quicker processing times, though short-term delays are possible as VFS Global takes over visa processing responsibility from Dutch consulates. Those with existing appointments on or after April 17 should contact VFS Global to reschedule their appointment.
This alert has been provided by the BAL Global Practice group. For additional information, please contact your BAL attorney.
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.
U.S. Citizenship and Immigration Services announced plans Monday to target certain H-1B employers for site visits and to encourage people to report suspected fraud or abuse in the H-1B program.
USCIS stated that starting this month, the agency will “take a more targeted approach” to administrative site visits and focus on:
According to the announcement, these targeted site visits will help the agency determine whether H-1B dependent employers are paying their H-1B employees the required wage to render them exempt from recruitment attestation requirements. Unannounced and random site visits that were already taking place for all H-1B employers will also continue.
To encourage reports of fraud or abuse in the H-1B program, USCIS has established an email address to receive information, ReportH1BAbuse@uscis.dhs.gov, and provides links to the Labor Department and U.S. Immigration and Customs Enforcement forms for reporting fraud and abuse. The USCIS announcement provides several examples of “H-1B fraud and abuse indicators,” such as wage disparities between H-1B workers and other workers performing the same or similar duties, and H-1B workers not performing duties specified in the H-1B petition.
USCIS also announced plans to publish a report on the H-1B visa petitions submitted for fiscal year 2018 and “create a web-based, searchable platform for the public to better understand how H-1B visas are being used.”
More information can be found at the USCIS website.
BAL Analysis: This set of initiatives follows Friday’s policy memorandum narrowing eligibility for H-1B status for computer programmers, and signals that the administration is focused on addressing perceived abuses in high-skilled visa categories. H-1B employers who fall into the categories described by USCIS should expect to be subject to additional administrative site visits, and should contact their BAL professional with any questions. BAL will continue to monitor implementation of these initiatives and provide updates on new developments.
The Department of Homeland Security indicated in a court filing Monday that it is considering whether to revise the regulation allowing H-4 spouses to work in the U.S. through the notice-and-comment process.
The 2015 regulation permitting spouses of certain H-1B workers to apply for employment authorization has been subject to litigation, and the case is currently in the U.S. Court of Appeals for the District of Columbia Circuit. In February, DHS asked the court to put the case on hold for 60 days to allow “the incoming leadership personnel adequate time to consider the issues.”
On Monday, DHS filed a motion requesting that this date be pushed to Sept. 27 on the grounds that the agency “has concluded that it is appropriate to actively reconsider whether to revise the H-4 rule through notice-and-comment rulemaking.” This additional six-month period, DHS asserts, will allow the agency “to reconsider the H-4 Rule and whether issuance of a notice for proposed rulemaking relating to it is appropriate.”
BAL Analysis: The court has not yet ruled on the motion. Employers should keep in mind that the regulation has not been modified or rescinded, and remains in effect at this time. Employment authorization documents issued under the regulation remain valid. BAL will continue to provide updates on developments in this case.
The filing period for cap-subject H-1B petitions opened Monday, and the number of petitions is expected to exceed the number of H-1B visas available within five business days.
Congress set the annual cap on H-1B visas at 65,000, plus an additional 20,000 visas for people with a master’s degree or higher from a U.S. university. For those filing for the first time or in need of a refresher, here is how the process is likely to unfold over the next few weeks:
In years past, petitions filed with a request for premium processing have been eligible for expedited 15-day processing. However, USCIS announced earlier this month that it will suspend premium processing of all H-1B petitions filed on and after the first day of the H-1B cap filing season.
Employers filing H-1B petitions may be eligible for expedited processing, but they must meet one of the criteria, such as severe financial loss to the company or individual, emergency situations, a compelling interest to USCIS, national interest, humanitarian reasons or USCIS error. Expedited requests are decided on a case-by-case basis at the discretion of USCIS. Historically, very few expedited requests are granted, particularly when the request is driven by business considerations. BAL Analysis: The H-1B cap has been reached in the first week of filing in each of the past four years, and there is every indication that the same will happen this year. USCIS received more than 236,000 H-1B cap-subject petitions during last year’s filing period, up from about 233,000 in 2015 and 172,500 in 2014. Because of the suspension of premium processing, employers should expect delays in H-1B cap receipt notices this year. BAL will continue to report on the status of the cap and the lottery next week and throughout the spring.
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.
IMPACT – HIGH
U.S. Citizenship and Immigration Services issued a policy memorandum over the weekend reversing long-standing policy that presumes the position of computer programmer to be a specialty occupation. The memorandum also signals that the agency will consider the wage level in the accompanying H-1B Labor Condition Application (LCA) to evaluate whether the position qualifies as a specialty occupation.
Key Points:
Background: The Trump administration had previously indicated its intention to address perceived abuses in the high-skilled visa categories. This represents the first major step toward restricting H-1B eligibility for lower-level computer professionals.
BAL Analysis: Companies filing petitions for computer programmer positions, particularly for entry-level positions, will likely see an increase in requests for evidence (RFEs) and notices of intent to deny (NOIDs) Because the memorandum takes effect immediately and will apply to cap petitions that have already been filed, it is possible that the policy change will be subject to litigation. BAL is continuing to analyze the memorandum and will provide additional updates on its expected impact.
The legal challenge to the 2016 regulation that expanded the Optional Practical Training (OPT) extension for science, technology, engineering and mathematics (STEM) degrees continues to progress. On Thursday, the court issued an order granting in part and denying in part the Department of Homeland Security’s (DHS) motion to dismiss the lawsuit, and is expected to issue a final order and opinion in the next 30 days. A status conference is scheduled for April 10.
What is the STEM OPT 2016 regulation?
On May 10, 2016, the final rule titled “Improving and Expanding Training Opportunities for F-1 Nonimmigrant Students with STEM Degrees and Cap-Gap Relief for All Eligible F-1 Students” went into effect. The regulation allows foreign students on F-1 visas with qualifying STEM degrees to extend their OPT for an additional 24 months beyond the initial one-year OPT period. Students may also be eligible for one additional STEM extension if they obtain a second U.S. STEM degree at a higher level.
The 24-month extension effectively replaced a 2008 rule allowing the 17-month STEM OPT extension previously available to certain students. The core purpose of the extension is to allow participating students to supplement their academic knowledge with valuable practical STEM experience with a U.S. employer qualified to develop and enhance their skills. The student’s STEM degree must be awarded by an accredited U.S. college or university and be in a subject that DHS recognizes as a STEM field.
The regulation also aims to increase the government’s oversight of the STEM OPT program by requiring formal training plans by employers, adding wage and other protections for STEM OPT students and U.S. workers, allowing extensions only to students with degrees from accredited schools, and requiring employers to enroll and remain in good standing with E-Verify. The rule also keeps in place Cap-Gap relief for any F-1 student with a timely filed H-1B petition and request for change of status.
In the process of implementing the final STEM OPT rule, DHS engaged in required notice-and-comment rulemaking procedures and received 50,500 comments from a range of entities and individuals, including U.S. and international students, U.S. workers, schools, universities, professional associations, labor organizations, advocacy groups, businesses and other interested parties.
What is the current status of the litigation?
When the new STEM OPT regulation took effect in 2016, The Washington Alliance of Technology Workers (WashTech) filed a second lawsuit against DHS challenging the regulation in the U.S. District Court for the District of Columbia. DHS filed a motion to dismiss WashTech’s claims, and the court issued a two-page order Thursday granting that motion in part and denying it in part. The order states that the reasons for the ruling will “be set forth in the Memorandum Opinion to be issued by the Court within the next thirty days, absent extraordinary circumstances.”
A status conference has been postponed twice and is scheduled for April 10, 2017 at 11:30 a.m. before Judge Reggie B. Walton.
What is the history of the litigation?
While the 2008 rule was in effect, a collective-bargaining organization representing STEM workers, WashTech, brought a legal challenge against the 2008 rule extension. WashTech argued that its members had been injured by the OPT program because the program “increases the number of economic competitors” and “exposes WashTech members to unfair competition by allowing aliens to work.” DHS stated that it had issued the 2008 rule without the notice and public comment “to avoid a loss of skilled students through the next round of H-1B filings in April 2008.”
In August 2015, the U.S. District Court for the District of Columbia ruled that the 2008 regulation was invalid due to procedural deficiencies; namely, that the rule had not been subject to the standard rulemaking process allowing for a notice-and-comment period. However, the court gave DHS until Feb. 12, 2016 to issue a replacement rule which would follow the standard rulemaking process. DHS requested an extension of the deadline until May 10, 2016 after receiving an unprecedented number of comments on the proposed new rule published in October.
As the new rule came in effect, the District Court for the District of Columbia threw out the WashTech lawsuit, stating that the case was moot.
BAL Analysis: The court’s order Thursday granting in part and denying in part the government’s motion to dismiss indicates that one or more of WashTech’s legal claims will still proceed, and the lawsuit will continue to progress. Employers should keep in mind that the existing STEM OPT rule remains in place at this time. Employers who require assistance and guidance with STEM OPT extensions should contact their BAL professional for specific advice. BAL continues to monitor this case and will provide updates on new developments.
As early as next week, the Trump administration will be required to take a position in federal court on the H-4 spousal work authorization regulation.
The regulation allows spouses of certain H-1B visa holders to obtain work authorization. It was a key policy achievement of the Obama administration, but the Trump administration has signaled that it will seek to rescind or modify the regulation. Changes to the H-4 spousal work authorization regulation are likely to be controversial and could potentially disrupt the work authorization of current employees.
What is the H-4 spousal work authorization regulation?
The H-4 visa is for immediate family members (spouses and children under 21 years of age) of H-1B visa holders. Though federal statute does not explicitly authorize H-4 visa holders to work, the Department of Homeland Security (DHS) promulgated regulations in 2015 allowing certain H-4 visa holders to qualify for employment authorization. To be eligible, H-4 visa holders must be a dependent of an H-1B employee who: (1) is the principal beneficiary of an approved I-140, Immigrant Petition for Alien Worker; or (2) has been granted H-1B status under sections 106(a) and (b) of the AC21 (under which H-1B nonimmigrants seeking employment-based lawful permanent residence may be eligible to work and remain in the United States beyond the six-year H-1B period of admission limitation).
The rule was implemented to alleviate personal and economic burdens placed on H-1B visa holders and their families during their transition from nonimmigrant to lawful permanent status by allowing their family members to work. In the process of implementing the final H-4 work authorization rule, DHS engaged in the required notice-and-comment rulemaking procedures, which provided an opportunity for public comments. The agency received nearly 13,000 comments during the 60-day public comment period. Commenters included individuals, employers, academics, labor organizations, immigrant advocacy groups, attorneys and nonprofit organizations. While opinions varied, a substantial majority (approximately 85 percent) of commenters supported the described rule. Approximately 10 percent of commenters opposed the proposed rule, citing potential adverse effects for the U.S. workforce, including displacement of workers, increased unemployment and decreased wages.
How many individuals have obtained work authorization under the H-4 spousal work authorization regulation?
Not all H-4 visa holders qualify for work authorization. DHS estimated that the rule would add as many as 179,600 people to the U.S. labor force in the first year of implementation, and as many as 55,000 people annually in subsequent years.
What is the status of the litigation?
An organization of information technology workers, Save Jobs USA, challenged the H-4 employment authorization rule in the U.S. District Court for the District of Columbia. The organization alleged that the President does not have the legal authority to issue a rule permitting H-4 dependent spouses to work in the U.S. because the regulation unfairly creates job competition by adding additional foreign workers to the labor force. The court dismissed the complaint without reaching the merits, finding that the tech workers did not demonstrate how they had been injured by the rule, and therefore lacked standing.
The tech workers are currently appealing the dismissal at the U.S. Court of Appeals for the District of Columbia Circuit. DHS requested that the Court hold the case in abeyance for 60 days, up to and including April 2, 2017. The government stated in its request that the extension is necessary to allow “the incoming leadership personnel adequate time to consider the issues.”
Will the government modify or rescind the H-4 spousal work authorization regulation?
It is not yet known how the government will respond regarding the challenged regulation.
How long will it take for the government to modify or rescind the regulation?
Typically, this process takes approximately 6-12 months. The government could seek to move faster by arguing that DHS has good cause to find that the notice-and-comment process would be “impracticable, unnecessary, or contrary to the public interest.”
What will be the impact on H-4 spouses who have already received an Employment Authorization Document (EAD) under the current regulation?
Until the regulation is rescinded or modified, the H-4 regulation remains in effect, and H-4 spouses with EADs will continue to be eligible to work. It is unknown whether any potential change would only have prospective effect or whether it would seek to rescind the previously issued work authorizations.
BAL Analysis: While the Trump administration has signaled that it would like to change or rescind the H-4 spousal work authorization regulation, it has not yet done so. The legal challenge will force the administration to reveal a position on the regulation, possibly as soon as next week. The case is Save Jobs USA v. U.S. Department of Homeland Security, U.S. District Court for the District of Columbia, C.A. No. 1:15-CV-615. BAL will continue to provide updates on significant developments on this case.