USCIS Rescinds Deference Policy for I-129 Extensions

October 24th, 2017

USCIS issued a policy memorandum on October 23, 2017, that abandons its long-held “due deference” policy for I-129 extensions, such as for H-1Bs, L-1As and L-1Bs. The policy memorandum rescinds the memorandum of April 23, 2004 titled “The Significance of a Prior CIS Approval of a Nonimmigrant Petition in the Context of a Subsequent Determination Regarding Eligibility for Extension of Petition Validity” and section VII of the August 17, 2015, policy memo titled “L-1B Adjudications Policy.” The memorandum is immediately effective and makes it very clear that petitioner has the burden of proof where an extension of nonimmigrant status is sought, and that the same level of scrutiny to both initial and extension petitions will apply, even where the parties and the facts have not changed from the original filing.

Premium Processing Resumed for All H-1B Petitions

October 3rd, 2017

USCIS announced that as of October 3, 2017, it has resumed the premium processing for all H-1B petitions, including the conversion of pending petitions. On September 18th USCIS resumed premium processing of H-1B petitions subject to the cap and on July 24th it reinstated premium processing for H-1B petitions filed by cap-exempt petitions based on the Conrad 30 Waiver program and interested government agency waivers.

Premium processing expedites the adjudication of a petition and USCIS is required to provide a decision or request additional evidence within 15 calendar days. If it fails to meet this deadline then it must return the premium processing fee.

Premium processing is particularly important for the beneficiaries of pending H-1B extension petitions, since they are only granted 240 days of continued employment authorization after the expiration date of their most recent H-1B approval notice. They are allowed to remain in the US after this 240-day period if the H-1B extension petition was filed before their H-1B status expired, but their employment authorization terminates after this period.

It is not necessary for an H-1B petition to change employers to be approved before the beneficiary may work for the new petitioner. The beneficiary may work after USCIS receives the H-1B petition from the new employer pursuant to portability.

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.