Monique Kornfeld, Immagration Lawyer

USCIS Adjustment of Status Visa Bulletin Filing Dates for October 2017

September 20th, 2017

USCIS has announced that for October 2017, the priority dates from the Filing chart must be used for family-based preference filings and the priority dates from the Final Action Dates chart must be used for employment-based preference filings.

USCIS Resumes Premium Processing for Some Categories of Applicants Seeking H-1B Visas

September 18th, 2017

On September 18, 2017, USCIS reinstated premium processing for all H-B petitions subject to the fiscal year 2018 cap, including the 20,000 additional petitions for foreign workers with a US master’s degree or higher educational degree. Previously, USCIS had resumed the premium processing of H-1B petitions filed on behalf of physicians under the Conrad 30 program as well as interested government agency waivers and certain other H-1Bs that are not subject to the cap.

Premium processing remains suspended for all other H-1B petition, such as extensions of stay and changes of employer. Beneficiaries of pending H-1B extension petitions are granted up to 240 days of employment authorization past the end date on their current/prior petition. Once this period expires, they may remain in the US but they cannot work. Beneficiaries of H-1B petitions to change employers may start working for the new employer once its H-1B petition is filed (portability).

October 2017 Visa Bulletin: EB2 Worldwide Category Current

September 14th, 2017

The U.S. Department of State (DOS) released the October 2017 Visa Bulletin showing that the employment-based second preference EB2 worldwide category is now current. This category regressed under the August 2017 Visa Bulletin. Under the Final Action Dates chart, EB2 category for India is at September 15, 2008, and for China May 22, 2013. The EB1 category also became current again for those chargeable to India and China and the EB1 worldwide category remains current. The EB3 worldwide category remains current and the EB3 category for China is at January 1, 2014, and at October 15, 2006, for India.

USCIS has not yet announced whether the Final Actions Dates chart or the Filing Date chart will govern when foreign nationals can apply to adjust their status. Recently, USCIS has allowed foreign nationals to use the Final Action Dates chart and those who have had a priority date earlier than the date in the ‘Final Action Dates for Employment-based Preference Cases’ chart may file their Forms I-485. Applicants for immigrant visas may use the ‘Dates for Filing of Employment-based Visa Applications’ chart.

Supreme Court Stays Court’s Mandate Preventing Exclusion of Refugees Under Trump Travel Ban

September 14th, 2017

The Supreme Court issued an order staying the Ninth Circuit’s mandate with respect to refugees covered by a formal assurance. (Trump v. Hawaii, 9/12/17). On September 7, 2017, the Ninth Circuit Court of Appeals affirmed the district court’s July 13, 2017, order modifying its preliminary injunction against Sections 2 and 6 of Executive Order 13780 to prevent the government from applying the executive order to exclude:
• Grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins of persons in the United States; and
• Refugees who have a formal assurance from a resettlement agency in the United States or who are part of the Lautenberg Program.

Parent Company Not Part of H-1B ACWIA Filing Fee Determination

September 11th, 2017

The American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) created a filing fee that certain petitioners must pay when filing an H-1B petition with US Citizenship and Immigration Services (USCIS). This fee is $1,500 for each such petition, except that the fee is half the amount where the petitioner has no more than 25 full-time equivalent (FTE) employees who are employed in the US (determined by including any affiliate or subsidiary of such employer). The terms “affiliate” and “subsidiary” were not defined at the time of ACWIA’s passage. In a policy memo dated August 9, 2017 (“Definition of “Affiliate” or Subsidiary” for Purposes of Determining the H-1B ACWIA Fee) USCIS provides definitions “affiliate” and “subsidiary”to determine the appropriate ACWIA fee.
What is most notable about this formula is that USCIS is no longer considering the FTE employees of the parent company when determining the amount of the ACWIA fee. The policy memo states:

“When determining the appropriate amount of the ACWIA fee, officers should count FTE employees of the petitioning employer and the petitioning employer’s affiliates and subsidiaries, . . . . Officers should not include FTEs employees from the petitioning employer’s parent company or the parent(s) of any affiliates. In other words, officers should count down and horizontally, including the petitioning employer’s other affiliates and subsidiaries, but not up toward its parent or its affiliates’ parent(s).”

DACA Rescinded as of March 5, 2017

September 5th, 2017

The Trump administration has terminated Deferred Action for Childhood Arrivals (DACA) as of March 5, 2017. It will reject all new applications for DACA status as of today but will process applications that have been filed as of today (the date of the official USCIS memo).

USCIS’s official “Memorandum on Rescission of Deferred Action for Childhood Arrivals” dated March 5, 2017, states that effective as of today, USCIS will do the following:

•Will adjudicate—on an individual, case-by-case basis—properly filed pending DACA initial requests and associated applications for Employment Authorization Documents that have been accepted by the Department as of the date of this memorandum.
•Will reject all DACA initial requests and associated applications for Employment Authorization Documents filed after the date of this memorandum.
•Will adjudicate—on an individual, case by case basis—properly filed pending DACA renewal requests and associated applications for Employment Authorization Documents from current beneficiaries that have been accepted by the Department as of the date of this memorandum, and from current beneficiaries whose benefits will expire between the date of this memorandum and March 5, 2018 that have been accepted by the Department as of October 5, 2017.
•Will reject all DACA renewal requests and associated applications for Employment Authorization Documents filed outside of the parameters specified above.
•Will not terminate the grants of previously issued deferred action or revoke Employment Authorization Documents solely based on the directives in this memorandum for the remaining duration of their validity periods.
•Will not approve any new Form I-131 applications for advance parole under standards associated with the DACA program, although it will generally honor the stated validity period for previously approved applications for advance parole. Notwithstanding the continued validity of advance parole approvals previously granted, CBP will—of course—retain the authority it has always had and exercised in determining the admissibility of any person presenting at the border and the eligibility of such persons for parole. Further, USCIS will—of course—retain the authority to revoke or terminate an advance parole document at any time.
•Will administratively close all pending Form I-131 applications for advance parole filed under standards associated with the DACA program, and will refund all associated fees.
•Will continue to exercise its discretionary authority to terminate or deny deferred action at any time when immigration officials determine termination or denial of deferred action is appropriate.

USCIS to Expand In-Person Interviews for Certain Residency Applicants

August 30th, 2017

As of October 1, 2017, USCIS will begin expanding in-person interviews for certain applicants for legal permanent residency. In particular, as of October 1st, USCIS will start requiring interviews for (1) Form I-485 applicants for adjustment of status to legal permanent residency whose I-485s are based on employment and (2) refugees and asylees (Form I-730) who are in the US following to join a principal asylee or refugee.

USCIS states that this policy will strengthen the integrity of our immigration system and provide it with the opportunity to verify information. However, these interviews are not only unnecessary but will only exacerbate the already tremendous backlog for interviews for family-based applicants for adjustment and for those applying to naturalize. It can take approximately six to eight months for an I-485 applicant based on marriage to obtain an interview. The extent to which these new misguided policy could slow this process down further is very troubling. Also, for employment-based I-485 applicants, who currently are not interviewed unless there is an important issue that must be verified, this expansion will not assist in properly adjudicating whether the applicant is working at the sponsoring company, the key issue for such a case. If USCIS is serious about fraud issues, it should conduct ad hoc investigations to ensure such employment.

Networking is Overrated: Focus on Achievements

August 27th, 2017

In today’s NYT’s editorial section (https://www.nytimes.com/2017/08/24/opinion/sunday/networking-connections-business.html?ref=opinion) Adam Grant writes, “Networking is overrated. Achievement is a magnet to mentors and a beacon to backers.” He notes that networking alone leads to “empty transactions” and not “rich relationships,” which bring the real rewards. He notes that it is important to first have an impressive track record and contribute something of value. He also states that self-promotion is distasteful and that we should promoting ideas instead of ourselves.

This is a wonderful message, but for attorneys, this can be especially difficult. Our relationships with our clients are confidential and private. I certainly could not publicize the approval of a green card for a particular client through USCIS (unless my client agreed). Attorneys do win awards and write articles, but the bulk of our valuable work is getting excellent results for our clients.

The basic rule that seems to have worked since time immemorial for all industries is to treat your clients like royalty, be honest, conscientious and caring and take great pride in your work. Also, it is important to develop deep relationships with professionals in complementary areas so networking still plays a valuable piece in one’s marketing campaign.

How should attorneys use LinkedIn in to promote their businesses? They should engage in less self-promotion and more discussion about ideas, law, policies and current events.

H-1B Request for Evidence Season and the Challenge to Level I LCA Positions

August 7th, 2017

The request for evidence (RFE) for H-1B specialty occupation worker visa petitions is in full swing and USCIS has added a new impediment to the H-1B process: the challenge to level I prevailing wage Labor Condition Applications (LCAs). Typically, USCIS will send requests for evidence of the professional nature of the position (requiring at least a bachelor’s degree in a related field) and/or the availability of sufficient professional work. This newest request for evidence, that the offered H-1B position is entry level where the underlying LCA relies on a prevailing wage level of I, is particularly misguided, illogical and unreasonable.

USCIS is relying on the entry-level definition from the US Department of Labor’s prevailing wage guidance. This guidance states: “Level I (entry) wage rates are assigned to job offers for beginning level employees who have only a basic understanding of the occupation. These employees perform routine tasks that require limited, if any, exercise of judgment. The tasks provide experience and familiarization with the employer’s methods, practices, and programs. The employees may perform higher level work for training and developmental purposes. These employees work under close supervision and receive specific instructions on required tasks and results expected. Their work is closely monitored and reviewed for accuracy.”

USCIS appears to be challenging the validity of an entry level of any position, which would have a level I prevailing wage determination. It is conflating the level within a particular occupation with the overall substantive nature of the knowledge and skill involved in every level of the occupation itself. In other words, it is ignoring that even the highest-skilled occupations, such as physicians, include a basic staging point from which every physician begins his or her career.

Also, USCIS’ RFEs on the level I prevailing wage positions violate the primary regulation on H-1B specialty occupations. The controlling regulations on the definition of a “specialty occupation” for H-1B purposes does not require that the job duties themselves satisfy the level I definition as noted by USCIS in the RFEs. Rather, according to 8 CFR §214.2(h)(4)(iii)(A)(1)-(4), an H-1B specialty occupation is one defined as satisfying only one of the four requirements listed below:

1. A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position;

2. The degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, an employer may show that its particular position is so complex or unique that it can be performed only by an individual with a degree;

3. The employer normally requires a degree or its equivalent for the position; or

4. The nature of the specific duties are [sic] so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree.

Therefore, if the employer can evidence that the proffered position normally requires at least a bachelor’s degree (within the organization, industry wide or as recognized as the normal requirement for entry into the particular position), then the employer has met its burden.

RAISE Act Attacks Legal Immigration and Ignores Business and Family Needs

August 4th, 2017

The Senate has proposed legislation that would have far-reaching consequences, drastically cutting legal immigration, favoring highly-skilled immigration substantially and reducing family sponsorship and unskilled labor. This simply ignores the benefits of legal immigration, family unity, chain immigration and the needs of US employers.

The Reforming American Immigration for a Strong Economy (RAISE) Act, introduced by Republican Senators Tom Cotton and David Purdue, and with the support of Trump, would create a merit-based point system, reduce family-based legal immigration by half, eliminate certain preference family categories, rid of the diversity visa lottery program and reduce refugees to 50,000 per year.

The merit-based point system fails to adequately consider the needs of US employers and will not make our economy stronger. It would favor higher-skilled workers based on their education, experience, achievements, English-speaking ability and the offered job salaries. However, this is an unprecedented intrusion by the federal government into decisions by US employers on the types of workers they need for their businesses. The narrow point-based system ignores considerations like one’s field of work and special skills. For example, it does not take into account young graduates from US schools just starting to work, seasonal workers filling gaps in our economy and artists and entertainers who contribute to our cultural diversity. Also, by switching to a point-based system, the RAISE Act unfairly eliminates the EB-5 investor visa program and the physician national interest waiver green card program.

The RAISE Act would also eliminate all family-based immigration categories except for spouses and children under 18 of US citizens and legal permanent residents. No longer would a US citizen be able to sponsor his or her parent and the temporary visa for certain parents is insufficient. Family-based immigration creates strong communities and helps businesses develop. In addition, family-based immigration fuels innovation. A majority of businesses in Silicon Valley were started by immigrants, many of whom came to the US through family sponsorship. Finally, this bill’s extremely narrow grandfathering would unfairly penalize those sponsored family members who have been waiting for years to immigrate to the US.
The basis of the legislation operates on the false assumption that immigration harms the US and it aims to increase wages for lower-skilled workers and reduce alleged abuse of the welfare system. However, cutting legal immigration for family members and low-skilled workers is not only misguided, nonsensical and harmful to our economy but is unnecessarily cruel in splitting apart families.

Slashing legal immigration by half does not make any sense, since legal immigration, including low-skilled immigration, creates jobs and bolsters the economy. Current immigration complements the US economy and creates jobs. The US population is growing older and the percentage of the population at retirement age will double by 2050. There is a dire gap in low-skilled workers, especially in industries such as agriculture, tourism and construction. In three to five years, we will need an additional 7.5 million workers in low-skilled industries. Such a gap will only grow and harm the US economy.

In fact, based on the dearth of workers, the US should be substantially increasing employment-based visas and creating new categories of working visas. Never has there been a time in history when the US has faced such global competition to attract the world’s talent and skills to the US. In an article in the New York Times on Sunday, July 31st, it noted that other countries, such as Canada and Mexico, are taking advantage of the US’ animus toward foreign workers and doing their best to attract them. Canada is instituting a new temporary working visa that is unlimited and should be processed in at little as two weeks. There are long backlogs for foreign nationals in the US to obtain green cards, which may cause many to consider moving to other countries where they are appreciated for their contributions.
It should also be emphasized that low-income non-citizen adults and children actually use fewer public benefits than native-born adults or citizen children with citizen parents. In addition, economic studies have found that immigrants have a net positive affect on our economy with the second and third generations contributing in the many billions to the US economy.

Notwithstanding the practical economic arguments against the RAISE Act and its erroneous assumptions, ultimately we should be admitting family members for family unity purposes and protect refugees who are fleeing persecution. It is contrary to our tradition of serving as a beacon of hope to the oppressed worldwide. We as Americans must seriously ponder who we want to be as a nation. Charles Darwin, in the “Descent of Man” conceded that there might be advantages to abandoning the weak and helpless, but he insisted that doing so would bring a greater “evil.” He emphasized that we must allow the weak to survive, and that by abandoning the weak and helpless we abandon “the noblest part of our nature.”

Luckily, there is not much support in the Senate for the legislation and it probably will not gain traction there or in a similar bill in the House.