Monique Kornfeld, Immagration Lawyer

H-1B Visas and the Level 1 LCA

January 16th, 2018

In an unprecedented move, in 2017 USCIS issued requests for evidence (RFEs) that challenged the professional nature of an H-1B petition’s position if it were based on a Labor Condition Application (LCA) with a level 1 prevailing wage. My office filed responses to these RFEs with copious and compelling arguments for why a level 1, entry level, position is still a specialty occupation for H-1B purposes.

Some employers may be inclined to raise the prevailing wage to a level 2 to avoid such a challenge. However, this is risky, since an employer must base its designation on the actual requirements of the position and can be penalized for failing to provide accurate information. A prevailing wage assessment includes the level of education, experience requirements and whether there are any supervisory duties and special skills.

The employer may file an H-1B petition based on an LCA with a prevailing wage assignation that is based on an actual determination from the Department of Labor. Under the Safe Harbor rule, if the case is audited, the DOL may not challenge the prevailing wage determination. Most employers do not obtain a prevailing wage determination though and instead prepare themselves to justify the level they chose if audited.

USCIS Announces the Resumption of DACA Renewal Processing

January 16th, 2018

On January 13, 2018, based on a Federal court order, USCIS announced that it will resume the processing of DACA renewals. DACA policy will operate pursuant to the same terms as those that were in place before September 15, 2017, when it was rescinded.

It should be noted that the Trump administration is considering litigation to overturn the judge’s ruling. If it prevails, then DACA will expire in March 2018 unless Congress creates a new program. DACA is currently the linchpin of negotiations to pass a budget to run the government. If the budget is not passed by this Friday we could have a shutdown. Some lawmakers are advocating a separate bill for DACA to avoid such a calamity.

USCIS Reverses Course on H-1B Extensions Beyond Six Years

January 10th, 2018

On Monday, January 8, 2018, USCIS reversed itself on its stance regarding H-1B extensions. Over New Year’s weekend, USCIS stated that it was considering terminating certain H-1B extensions for longer than six years. However, on Monday its chief of media relations announced:

“What we can say, however, is that USCIS is not considering a regulatory change that would force H-1B visa holders to leave the United States by changing our interpretation of section 104(c) of AC-21, which provides for H-1B extensions beyond the 6 year limit,” the agency told McClatchy. “Even if it were, such a change would not likely result in these H-1B visa holders having to leave the United States because employers could request extensions in one-year increments under section 106(a)-(b) of AC21 instead.” ”

This is very welcome news, since the termination of the H-1B extensions beyond six years would have wreaked havoc on the US’s economy and harmed the careers and lives of hundreds of thousands of H-1B foreign workers and their families.

200,000 Salvadorans Will Lose Temporary Protected Status

January 8th, 2018

USCIS will end Temporary Protected Status (TPS) for approximately 200,000 Salvadorans on September 9, 2019. The Salvadorans were initially granted TPS after earthquakes devastated the country in 2001. The Department of Homeland Security determined that conditions in El Salvador have improved significantly to make it safe enough for the Salvadoran TPS holders to return. The 200,000 TPS Salvadorans are the parents of an estimated 190,000 children born in the US and about one-third own homes.

Immigration advocates contend that TPS should be extended, since El Salvador is one of the most violent countries in the world and that TPS Salvadorans send money home, which stabilizes the country by bolstering its economy.

CBP Releases Updated Border Search of Electronic Device Directive

January 8th, 2018

On January 5, 2018, US Customs and Border Protection (CBP) released an update to the agency’s directive on border searches of electronic devices. This Directive supersedes the previous directive dated August 2009.

In the Directive, Deputy Executive Assistant Commissioner, Office of Field Operations, John Wagner states that “CBP is committed to preserving the civil rights and civil liberties of those we encounter, including the small number of travelers whose devices are searched, which is why the updated Directive includes provisions above and beyond prevailing constitutional and legal requirements. CBP’s authority for the border search of electronic devices is and will continue to be exercised judiciously, responsibly, and consistent with the public trust.”

The Directive describes basic and advanced searches and the treatment of privileged and confidential information (e.g., protected by the attorney-client privilege). It provides a procedure to request that sensitive and confidential information be excluded from the search.

In the fiscal year 2017, CBP conducted 30,200 border searches of electronic devices of incoming and outgoing international travelers. CBP officers searched approximately 0.007 percent of arriving international travelers’ (more than 397 million) electronic devices (more than 29,200). In the previous fiscal year, CBP officers searched 0.005 percent of arriving international travelers’ (more than 390 million) electronic devices (more than 18,400).

Department of Homeland Security Reportedly Considering Changes to H-1B Extensions Beyond Six Years

January 7th, 2018

Thousands of H-1B workers, including upwards of 500,000 H-1B workers from India, may be unable to continue working indefinitely in the US, and may need to wait abroad for years, if a proposal by the Trump administration not to extend H-1B visa status beyond the six-year limit for those waiting for permanent residency (green card) is implemented.
It is reported that the Department of Homeland Security is considering new regulations that would prohibit H-1B certain extensions beyond the statutory six-year maximum as part of President Trump’s “Buy American, Hire American” initiative.

Under 8 CFR §214.2(h)(13)(iii), foreign nationals are allowed six years of H-1B status with each petition requesting up to three years at a time. However, under two provisions of the American Competitiveness in the Twenty-First Century Act (AC21), indefinite extensions are allowed for foreign nationals who are the beneficiaries of a pending legal permanent residency (“green card”) process. According to PL 106-313, §106(a), AC21, H-1B status shall be extended in one-year increments indefinitely beyond the six-year limitation if a labor certification or Form I-140 immigration visa petition was filed at least 365 days prior to the expiration of H-1B status. According to §104(c) of this Act (and a USCIS policy memo by Yates, Assoc. Dir. Operations, USCIS), H-1B status may grant an extension in three-year increments indefinitely beyond the six-year limitation for beneficiaries of approved EB-1, EB-2 or EB-3 Form I-140 immigrant visa petitions who are unable to file to adjust status to legal permanent residency or acquire an immigrant visa abroad because of per country limitations (immigrant visa number backlogs).

Because there is an extremely long wait for certain green card applicants, particularly for foreign nationals who were born in India, hundreds of thousands of these foreign workers from these countries may wait an average of 10 to 12 years to obtain legal permanent residency. There are 400,000 immigrant visa numbers available each year for a foreign national to obtain legal permanent residency based on employment and these visas are allocated evenly among all nations. This inevitable results in a backlog for nationals of high demand countries such as India. Currently, the US Department of State Visa Bulletin shows that the priority date, or place in line, for foreign nationals from India in the EB-2 category is November 22, 2008, and for EB-3 is November 1, 2006. Numbers do not move consistently each month and some months they may freeze or even regress. Because of the law allowing for indefinite extensions of H-1B status until their green card processing is completed, foreign nationals are allowed to remain in the US and work during this period.

DHS is considering ending the extensions of H-1B status under §104(c), by reinterpreting the “may grant” language as discretionary. However, §106(a) of AC21 provides that the six-year H-1B period “shall not apply” to H-1B workers who fall under this section and that DHS “shall extend” their H-1B status in one-year increments until a final decision has been made on their application to adjust status to legal permanent residency. The word “shall” should be read as mandatory, and therefore DHS would be compelled to grant indefinite one-year extensions under §106(a). Therefore, H-1B workers who would not qualify for the three-year indefinite extensions under §104(c) could still be eligible for indefinite one-year increments of H-1B status under §106(a).

In order for such changes to be implemented, DHS needs to follow the Administrative Procedures Act and issue a proposed regulation and follow the notice and comment rulemaking procedures. This process could take many months. Furthermore, any such proposal could be the subject of litigation, which is almost undoubtable.
Although it has becoming increasingly challenging to obtain H-1B status, including increasing fees and setting higher standards for proving a position is a specialty occupation, demand for H-1B visas remains high. US employers allege that there is a dearth of qualified US workers with at least a bachelor’s degree in a STEM (science, technology, engineering, math) field.

There are many compelling arguments for retaining the H-1B extension rules. Chief among them is that the H-1B foreign-born skilled worker pays US taxes, bolsters the country’s economy and fills a need for STEM workers. Many technology experts have warned that if the US excludes them, then it will only benefit their home countries, since they will simply return home and start successful new companies, such as Facebooks and Ubers, something that US technology experts state is already happening in China.

USCIS Clarifies Use of Irrevocable Proxy Vote for L-1 Intracompany Transferee Petition

January 4th, 2018

US Citizenship and Immigration Services (USCIS) issued an updated policy guidance on January 3, 2018, clarifying that a proxy vote must be irrevocable to establish the requisite control of a company in an L-1 visa petition.

L-1 visas are available to persons who have worked abroad for one continuously year within the preceding three years in an executive, managerial, or specialized knowledge capacity for a firm or corporation or other legal entity, or a parent, subsidiary or affiliate thereof, and who are being transferred temporarily to the United States to work in an executive, managerial, or specialized knowledge capacity for the same employer or a parent, subsidiary or affiliate thereof. The L-1B specialized knowledge visa has a maximum period of stay of five years, compared to the L-1A managerial/executive visa of seven years.

In determining if a qualifying relationship exists, USCIS will evaluate the ownership and control of the respective entities, including the use of proxy votes. Proxy votes are secured when one or more equity holders irrevocably grant the ability to vote their equity to another equity holder, thereby effectively and legally giving the other equity holder “control” over the company or companies in question.

The new policy memorandum states that when proxy votes are a determining factor in establishing control, the petitioner must provide evidence that proxy votes are irrevocable from the date of filing through the time USCIS makes a decision on the petition, along with evidence the relationship will continue during the approval period requested. If there a change in the ownership or control of the organization after the L-1 petition is approved, then the petitioner must file an amended petition that complies with the clarified guidance on irrevocable proxy votes.

The H-1B Master’s Cap Is Not for Any US Master’s Degree

December 28th, 2017

There are 85,000 H-1B visa numbers available every year under the H-1B cap, with 20,000 set aside for H-1B petitions where the beneficiary has earned a US master’s or higher degree (INA §214(g)(5)(C); 8 CFR §214.2(h)(8)(ii)(B)). For the US master’s or higher degree to qualify, the institution conferring the degree must be an institution of higher education as defined in section 101(a) of the Higher Education Act of 1965 (20 USC §1001(a)), which requires, inter alia, that the school be public or nonprofit and accredited. The consequences are dire if the petition is denied on this basis, since it will bar the employer from filing a new H-1B petition subject to the statutory cap until the following year.

The Higher Education Act at 20 USC § 1001(a) defines a US institution of higher education as an educational institution in any state that:

(1) admits as regular students only persons having a certificate of graduation from a school providing secondary education, or the recognized equivalent of such a certificate or persons who meet the requirements of section 1091(d) of this title;
(2) is legally authorized within such State to provide a program of education beyond secondary education;
(3) provides an educational program for which the institution awards a bachelor’s degree or provides not less than a 2-year program that is acceptable for full credit toward such a degree, or awards a degree that is acceptable for admission to a graduate or professional degree program, subject to review and approval by the Secretary;
(4) is a public or other nonprofit institution; and
(5) is accredited by a nationally recognized accrediting agency or association, or if not so accredited, is an institution that has been granted preaccreditation status by such an agency or association that has been recognized by the Secretary for the granting of preaccreditation status, and the Secretary has determined that there is satisfactory assurance that the institution will meet the accreditation standards of such an agency or association within a reasonable time.

USCIS relies on the National Center for Education Statistics (NCES) to assist it in making a determination on the school’s eligibility. NCES is the primary federal entity for collecting and analyzing education data in the US and is part of the US Department of Education and the Institute of Education Sciences. At its website at http://nces.ed.gov/collegenavigator/, it provides information about whether the school is public or nonprofit and the number of years of its educational program.

If USCIS makes a determination under 8 CFR § 214.2(h)(8)(ii)(B) that the educational institution is not covered under US master’s cap for H-1B purposes, then it will not refund the filing fees in denying the case. Also, since H-1B cap petitions are filed pursuant to a lottery because of the historic demand far outstripping supply, there is no chance that an H-1B visa number would remain available so that the petitioner could refile under the bachelor’s cap for that fiscal year. Instead, the petitioner would have to wait to file in April of the following year.

To file the National Interest Waiver, Outstanding Researcher or Extraordinary Ability Petition, That is the Question

December 27th, 2017

Recently, a European foreign national contacted my office about the pros and cons of filing an EB-1B outstanding researcher petition versus an EB-2 national interest waiver. He is working at a prestigious academic and research institution in the US and would have a strong EB-1B outstanding researcher or EB-2 national interest waiver case. Although he has plenty of time remaining in H-1B status, he has other personal reasons for wanting to obtain legal permanent residency sooner than later. As discussed below, although the EB-2 national interest waiver would be relatively easier to get approved, the EB-1B outstanding researcher is more practical for his case.

Foreign nationals who seek legal permanent residency based on their outstanding ability or significant track record, and who are subject to the worldwide chargeability category for immigrant visas (meaning that they were not born in India or China and do not have spouses who were not born in these countries), have several relatively quicker options outside the PERM labor certification application. This is because the priority date for the EB-1A extraordinary ability, EB-1B outstanding researcher/professor and EB-2 national interest waiver immigrant visa categories are usually current; i.e. do not normally backlog. In the EB-1 category, foreign nationals may file their Form I-485 application to adjust status simultaneously with the Form I-140 immigrant visa petition if a visa number is available. Alternatively, they may premium process their Form I-140, and then if approved, file the Form I-485 application to adjust status. For the EB-2 national interest waiver, they must file the I-140 via traditional processing, and if is approved, then file the I-485.

The obvious advantage to filing an EB-1A extraordinary ability or EB-1B outstanding researcher/professor I-140 petition is the ability to file via premium processing (for an extra $1,225) to obtain an approval far more quickly. Premium processing requires USCIS to make a decision in as little as 15 calendar days, and if a request for evidence is issued, then an additional 15 calendar days after the response is filed. There is no premium processing for the EB-2 national interest waiver, which means that it moves at a relative snail’s pace, with the process taking approximately six to 12 months. However, the EB-1A extraordinary ability and EB-1B outstanding researcher categories have more stringent requirements than the EB-2 national interest waiver. If there is no urgency for the foreign national to obtain green card status (legal permanent residency), such as if the foreign national still has several years remaining in H-1B status, then the EB-2 national interest waiver may be preferable because of its different criteria, which many deem as less challenging than the EB-1A extraordinary ability or EB-1B outstanding researcher categories.

The EB-1A extraordinary ability visa petition is the most challenging. One must show extraordinary ability in the sciences, arts, education, business or athletics that has been demonstrated by sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation. One must have a level of expertise indicating that the individual is one of “that small percentage who have risen to the very top of the field of endeavor.” In other words, the worker should be the cream of the crop. Receipt of a major, internationally recognized award, on its own, can qualify a worker for extraordinary ability classification, such as the Nobel Prize. Other lesser awards might also qualify, but would have to rise to the level of a Nobel Prize or similar awards.

The regulations provide for alternative evidence if the foreign national has not received a single high-ranking, distinguished, internationally-recognized award. To satisfy the alternative requirement, the petition must include evidence that the individual satisfies at least three of the following criteria:

1. Receipt of lesser nationally or internationally recognized prizes or awards for excellence;
2. Membership in associations in the field which demand outstanding achievement of their members, as judged by recognized national or international experts in their fields;
3. Published material about the alien in professional or major trade publications or major media relating to the alien’s work in his field;
4. Evidence that the alien is a judge of the work of others in the same or allied field of endeavor;
5. Evidence of the alien’s original contributions of major significance to the field;
6. Authorship of scholarly articles in the field, in professional journals or other major media;
7. Display of the alien’s work at artistic exhibitions or showcases;
8. Evidence the alien has performed in a leading or critical role for organizations that have a distinguished reputation;
9. Evidence that the alien commands high remuneration in relation to others in the field; and
10. Evidence of commercial success in the performing arts, as shown by box office receipts or record, cassette, compact disk, or video sales.

The EB-1B outstanding researcher visa petition has a less exacting standard. In order to qualify as an “outstanding researcher,” one must demonstrate international recognition as outstanding in a specific area. USCIS requires the showing of at least two of the following in order to satisfy this test:

1. Receipt of major prizes or awards for outstanding achievement in the academic field;
2. Membership in associations in the academic field that require outstanding achievements of their members;
3. Published material in professional publications written by others about the alien’s work in the academic field;
4. Evidence of the alien’s participation, either individually or on a panel, as a judge of the work of others in the same or allied field;
5. Evidence of the alien’s original scientific or scholarly research contributions to the academic field (primary evidence in the form of recommendation letters); or
6. Evidence of the alien’s authorship of scholarly books or articles in the academic field.

Also, to qualify as an outstanding researcher, the alien must document at least three years of outstanding research experience in his or her field.

The EB-2 national interest waiver has the most lenient criteria of the three special immigrant visa petitions, in light of the recent case of Matter of Dhanasar. This case requires the following to prevail in a national interest waiver immigrant visa petition:

1. The alien is a member of the professions holding an advanced degree (above a bachelor’s degree) or an alien of exceptional ability;
2. The alien’s proposed endeavor has both substantial and national importance;
3. The alien is well positioned to advance the proposed endeavor; and
4. That, on balance, it would be beneficial to the US to waive the requirements of the job offer of the labor certification.

It should be noted that although the nebulous criteria differ for these three categories, and different legal arguments must accompany these petitions, they rely on the same information and documentation about the achievements and track record of the foreign national beneficiary.

Besides the differing degrees of challenge in the three categories, there is another important consideration, which is self-petitioning versus sponsorship by an employer. Only the EB-2 national interest waiver and EB-1A extraordinary ability categories, not the EB-1 outstanding researcher category, allow foreign nationals to be sponsored by an employer or petition for themselves (self-petition). It is recommended that foreign nationals self-petition for the EB-2 national interest waiver or EB-1A extraordinary ability category, since it provides more mobility for them. If they file the petitions on their own behalf, then they are not tethered to a particular employer until the petition is approved. This is because foreign nationals pursuing legal permanent residency through an employer-sponsored immigrant visa petition must intend to work for the sponsoring employer pursuant to the terms of the petition upon approval of the Form I-485 for legal permanent residency or an immigrant visa petition at a US consulate abroad. Therefore, if foreign nationals need to change employers during the course of or after an approval of an employer-sponsored petition, they would need to restart the process with the new employer.

Finally, it should be emphasized that foreign nationals can file multiple Form I-140 immigrant visa petitions, in any combination, simultaneously, or sequentially with USCIS. For example, an institution can first file an I-140 EB-1B outstanding researcher petition, and if it is denied, then the foreign national can file the EB-2 national interest waiver. Alternatively, the foreign national can file the EB-2 national interest waiver and EB-1A extraordinary ability immigrant visa petitions concurrently, although with the option of filing the EB-1A extraordinary ability petition via premium processing there is little reason to do so, unless the foreign national wishes to forgo the premium processing filing fee.

USCIS Issues Report on Trends in H-1B Filings

December 27th, 2017

USCIS has issued a report of statistics on H-1B filings from FY2007 and FY2017, including the number of petitions filed and approved and the countries of birth, age, occupation, industry, annual compensation, and education. The FY2017 data is through June 30, 2017, and a large portion of the FY 2017 petitions are still pending as of the date of this report.

For the full year of 2016, it received 399,349 petitions and approved 348,162. For FY2017 USCIS has received 336,107 and approved 197,129 as of June 30th. Since 2007, the beneficiaries of these H-1B petitions have been overwhelmingly from India with 300,902 filed for Indian nationals out of the total 399,349. China comes in second in 2016 with 35,720 filed for its nationals. For 2016, 281,017 petitions were filed for computer related fields. Also, in 2016, the breakdown of the education of the beneficiaries was 180,777 for a bachelor’s degree, 180,961 for a master’s degree, 11,880 for a professional degree and 25,602 for a Ph.D.