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).

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).”

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.

USCIS to Resume Premium Processing for Certain Cap-Exempt H-1B Petitions

July 24th, 2017

The following is an announcement from USCIS’s website regarding its resumption of premium processing for certain cap-exempt H-1B petition:

WASHINGTON — U.S. Citizenship and Immigration Services (USCIS) will resume premium processing for certain cap-exempt H-1B petitions effective immediately. The H-1B visa has an annual cap of 65,000 visas each fiscal year. Additionally, there is an annual “master’s cap” of 20,000 petitions filed for beneficiaries with a U.S. master’s degree or higher.

Premium processing will resume for petitions that may be exempt from the cap if the H-1B petitioner is:

* An institution of higher education;

* A nonprofit related to or affiliated with an institution of higher education; or

* A nonprofit research or governmental research organization.

Premium processing will also resume for petitions that may also be exempt if the beneficiary will be employed at a qualifying cap-exempt institution, organization or entity.

USCIS Announces Return of All 2018 H-1B Cap Cases

July 19th, 2017

Today USCIS announced that it has returned all fiscal year 2018 H-1B cap-subject petitions that were not selected in our computer-generated random selection process. USCIS previously announced on May 3, 2017, that it completed data entry of all selected cap-subject petitions.

If you submitted an H-1B cap-subject petition between April 3 and April 7, 2017 and have not received a receipt notice or a returned petition by July 31, 2017, you should contact USCIS for assistance.

USCIS Reinstates H-1B Premium Processing for J-1 Conrad 30 Physicians and Interested Government Agencies

July 8th, 2017

USCIS has reinstated its H-1B premium processing for J-1 Conrad 30 physicians as well as interested government agencies (IGAs). The Form I-907 request for premium processing can now be filed for H-1B petitions based on the Conrad 30 and IGA designations. The Conrad 30 program allows for certain physicians to work in medically underserved areas (MUAs) and health professional shortage areas (HPSAs) in H-1B status after completing their J-1 program and waives their two-year foreign residence requirement of INA Section 212(e). The two-year requirement bars the J-1 worker from obtaining H-1B status or legal permanent resident until he or she has served two years in his her home country after completing the J-1 program.

USCIS also announced that it will resume premium processing for other H-1B petitions as its workloads permit.

USCIS Adopts Decision Clarifying Master’s Degree H-1B Cap Exemption

June 22nd, 2017

On May 31, 2017, USCIS published a memo adopting a decision from the Administrative Appeals Office (AAA) clarifying the criteria for eligibility under the H-1B cap exemption based on a master’s degree. The policy memo called the AAO’s decision of Matter of A-T-Inc. an adopted decision because it is meant to provide guidance to all agency employees.

H-1B cap exemption is extremely important, since there are only 65,000 H-1B visa numbers available each year under the cap to those with a bachelor’s degree or equivalent and an additional 20,000 to those who have a US master’s degree or higher. Once the cap has been reached, a foreign national may only obtain H-1B status if working for a cap-exemption institution (such as institutions of higher education or nonprofits affiliated with them) or if not subject to the cap (e.g. is the beneficiary of an extension of H-1B status).

The AAO, which is a branch of USCIS, held that in order to qualify under the H-1B cap exemption based on a master’s degree or higher, the institution conferring the degree must have counted as a “United States institution of higher education” when the foreign national beneficiary’s degree was awarded. It reasoned that requiring preaccreditation “helps ensure the quality of education necessary to merit a master’s cap exemption.”

The AAO also held that if the beneficiary was not eligible for the master’s cap exemption then a visa number under the regular cap would not be available if the regular cap had already been reached.

Cap Gap for F1 Students Without an H-1B Rejection or Decision

May 8th, 2017

On May 3, 2017, USCIS announced that it had completed selecting the H-1B petitions for the lottery and that the rejected petitions would begin to be returned. During this period, for those cases where there has been no receipt or rejected petition, F-1 students may continue to obtain an automatic extension of their optional practical training (OPT) employment authorization documents (EAD) from the H-1B cap-gap extension until the rejected petition is received. Once received, the 60-day grace period kicks in from the date of the rejection notice or their program end date, whichever is later.

If an H-1B petition is selected, then the F-1’s EAD is only automatically extended through October 1, 2017, and not until the H-1B is approved. Therefore, if the F-1 student is eligible for a STEM OPT extension, he or she should apply for it.

Application of 60-Day Grace Period for Laid Off H-1B Worker

May 4th, 2017

In January 2017, the Department of Homeland Security’s (DHS) published final rule became effective providing benefits to many highly skilled nonimmigrant workers and those workers with immigrant employment-based cases (Forms I-140) in the EB-1, EB-2 and EB-3 categories. One of the benefits of this rule was to grant up to a 60-day grace period to laid off H-1B, E, L and O nonimmigrant workers so that they could try to find H-1B or other employment or other ways to remain in the country in lawful status.

Recently, I was contacted by a foreign national who was laid off by her H-1B employer and she filed an I-539 to change her status from H-1B to H-4 during the 60-day period. She now has a new offer of H-1B employment. The new employer would not be able to file the H-1B petition until after the 60-day grace period and she wants to know if she is eligible for a change of employer H-1B petition so that she will not have to depart the US to restart in H-1B status. Under the new rule, she cannot obtain a change of employer petition in the US, but she does have other options, which are as follows:

1) File the H-1B petition for consular processing, meaning that she will have to depart and reenter the US. She would not need a new H-1B visa if she has current H-1B visa that will be valid when she wants to reenter.
2) Wait until the I-539 application to change her status to H-4 is approved. Then, the employer could file the H-1B petition for her to change her status from H-4 to H-1B in the US and she would have to wait for the new H-1B petition to be approved before she could start working in H-1B status.

If USCIS starts approving H-1B petitions quickly, even without premium processing, which has been temporarily suspended, then she may be able to work sooner than later. Just yesterday I received an H-1B extension petition approval that USCIS processed in 29 days.

Trump’s Executive Order on H-1Bs and Hiring American

April 20th, 2017

On April 18, 2017, President Trump signed a new Executive Order, “Buy American and Hire American.” In this order, Trump directs DOL, DOJ, DHS, and DOS to review the current laws of the H-1B visa program and suggests “reforms to help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries.” The order also instructs these agencies to review all visa programs and investigate and eliminate fraud and abuse in order to protect US workers. The following are important points about this order from AILA’s talking points:

• It will have no immediate impact on H-1Bs, since many of the changes to the H-1B program would require timely and unpredictable legislative action or rulemaking;
• There is very little evidence of fraud in the H-1B program and it already includes provisions to deter fraud and abuse, which is paid for by the $500 Fraud Detection Fee;
• The H-1B program is critical to allow businesses to acquire access to foreign professionals with valuable skills, without which many businesses would be stymied from growing. The H-1B program is not used to replace US workers, especially with the onerous requirements and fees that make the comparative hiring of a US worker easier and less costly to an employer.
• H-1B visas do not depress wages for US workers. In fact, there is some evidence that they actually raise overall wages. On average, H-1B visa holders earn more than similarly employed US workers.
• The H-1B program creates jobs for US workers and does not create greater unemployment for them. Also, the unemployment rate for H-1B specialty occupations is very low as compared to the national unemployment rate. This is because the H-1B program is only for positions requiring a bachelor’s degree or equivalent specialized knowledge in a particular field.
• US employers do not hire H-1B workers to save money, since the program is expensive. Most employers use the H-1B because they cannot find qualified US workers.
• H-1B workers are vital to our economy across all industries, including our healthcare system, and our manufacturing and energy industries. In order for US companies to be able to grow and compete globally they must be given the opportunity to hire the best and the brightest from all over the world.
• The greatest improvement to the H-1B program would be the elimination of the statutory cap of 65,000 for those with a bachelor’s degree and 20,000 additional numbers for advanced degrees. There are still provisions to protect US workers under current H-1B law, including a prevailing wage requirement and a recruitment requirement for H-1B dependent employers (those employers with a significant percentage of H-1B workers).