USCIS Completes H-1B Lottery for FY 2018

April 17th, 2017

USCIS announced that on April 11th it ran a computer-generated random lottery of the filed H-1B cap petitions to select enough petitions to meet the 65,000 bachelor’s and 20,000 advanced-degree cap. It noted that it received 199,000 petitions this season and that it will reject and return those petitions not selected for filing, along with the filing fees.

It should be noted that this it received approximately 15% fewer petitions this year than last year (236,000).

Suspension of Premium Processing for H-1Bs Harms US Healthcare

April 10th, 2017

USCIS’s temporary suspension of premium processing for H-1B petitions will have a deleterious effect on US employers, and most importantly on those in healthcare. Many medically underserved areas in the US rely predominantly, and sometimes solely, on foreign physicians. Because many of these facilities are H-1B cap exempt, they are not subject to the lottery and the H-1B beneficiary physician may start working as soon as the H-1B petition is approved (and not until October 1st like those subject to the cap). It is critical that these petitions are approved as soon as possible for physicians in these medically underserved areas. Premium processing, which allows for the expedited processing of H-1B petitions in as little as 15 days, is critical in ensuring the steady provision of healthcare. Now, during this temporary suspension, employers could wait many months (and if based on prior traditional processing, up to one year).

USCIS has stated that its reason for suspending premium processing was to shift resources to traditional processing, which is taking an unacceptably long time (over one year in some cases), in order to alleviate the backlog. However, USCIS is not making any guarantees of how quickly traditional processing will proceed. Therefore, premium processing should remain available, at least in cases of the nation’s interest.

It should be emphasized that an approved petition is not required for the continued employment authorization of a beneficiary pursuant to a pending extension petition or a change of employer petition. The beneficiary may work at the petitioner so long as the H-1B petition is filed before the beneficiary’s current H-1B status expires (with some exceptions), or during the 60-day grace period for those laid off. However, for extension petitions that are timely filed, employment authorization is continued only for 240 days from the end date of the beneficiary’s last H-1B petition. USCIS should revise its policy to allow for continued work authorization during the entire time that the extension petition is pending, since the petitioner and beneficiary should not be punished for the exorbitant delays at USCIS.

H-1B Cap for Fiscal Year 2018 Reached

April 7th, 2017

USCIS announced today that it reached the H-1B cap – 65,000 bachelor’s degree petitions and 20,000 US master’s degree petitions – and that it will not accept any more petitions. As in the prior years, they will run a random computerized lottery to determine which petitions receive H-1B numbers. Petitioners should start receiving receipts or rejected cases in one to two months.

USCIS will continue to accept and process H-1B petitions that are not subject to the cap (including institutions of higher education, organizations affiliated with institutions of higher education, governmental and research organizations). However, premium processing has been temporarily suspended for all H-1B petitions as of April 3, 2017.

Also, USCIS will continue to accept the following petitions that are filed to:

• Extend the amount of time a current H-1B worker may remain in the United States;
• Change the terms of employment for current H-1B workers;
• Allow current H-1B workers to change employers; and
• Allow current H-1B workers to work concurrently in a second H-1B position.

USCIS Announces Targeted Measures to Detect H-1B Fraud

April 5th, 2017

USCIS announced a more targeted approach to deter and detect H-1B visa fraud and abuse. The H-1B visa program allows US companies to employ foreign nationals in professional occupations. There is a fraud detection fee of $500 to allow the US Department of Homeland Security to conduct site visits to ensure that companies are complying with the H-1B program. Under the new measures announced, USCIS will focus its audits on H-1B employers who are H-1B dependent (those who have a high ratio of H-1B workers as compared to US workers, as defined by law); employers whose basic business information cannot be validated through commercially available data; or employers whose H-1B employees work offsite at another company’s or organization’s location.

USCIS Rescinds Memo on Computer Programmers as H-1B Positions

April 5th, 2017

On March 31, 2017, USCIS issued a memo rescinding a December 22, 2000, memo on H-1B computer-related positions. The new memo discusses its approach to whether a computer programmer will be deemed a specialty occupation for H-1B purposes. It states that the former memo’s reliance on the Occupational Outlook Handbook was misguided and that the current version of the Handbook states that individuals with only an associate’s degree may become a computer programmer. Therefore, in the new memo USCIS finds that reliance on the Handbook is not sufficient support for finding that a computer programmer is a specialty occupation.

Rather, USCIS instructs a petitioner to provide other evidence pursuant to 8 CFR 214.2(h)(4)(ii) to show that the particular position is a specialty occupation (i.e. to show that the position has a minimum entry requirement of a US bachelor’s degree in the specific specialty, or its equivalent). In particular, USCIS states that one of the four criteria names in 8 CFR 214.2(h)(4)(iii) must be satisfied. These four criteria are the following:

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.

It should be emphasized that the requirement of a bachelor’s degree in the specific specialty has been broadened to allow for a bachelor’s degree in other fields that provide the specialized knowledge of that particular specialty occupation. A federal court has held that 8 CFR 214.2(h)(4)(ii) does not “restrict qualifying occupations to those for which there exists a single, specifically tailored and titled degree program.” Raj and Company v. USCIS, US District Court for the Western District of Washington, January 14, 2015; Residential Finance Corp. v. USCIS, 839 F.Supp.2d 985, 994-97 (S.D. Ohio 2012). In Residential Finance Corp, the court reversed denial of an H-1B petition as arbitrary and capricious where USCIS focused on the title of the degree/field of study rather than the substantive knowledge obtained through specialized courses within the titled field.

Delay in Processing of H4/EADs Filed with H-1Bs via Premium Processing

March 24th, 2017

The Nebraska Service Center of USCIS has announced that there will be delays in processing Form I-539s requesting an extension of H-4 status and I-765s requesting the employment authorization document (EAD) filed concurrently with the H-1B spouse’s extension petition through premium processing. The NSC has been overwhelmed with premium processing (I-907) requests for H-1Bs (and attendant I-539s for extensions) because of the announcement of USCIS several weeks ago that it was suspending premium processing for all H-1Bs as of April 3, 2017. USCIS claims that it is taking such action to reduce its enormous backlog in pending H-1B petitions that were filed traditionally. My office has noticed that traditional H-1B petitions can take more than one year.

Federal Judge Upholds H-1B Visa Lottery Program

March 21st, 2017

A federal district court in Oregon upheld USCIS’s randomized computer lottery system for H-1B visas. It rejected arguments by the class-action plaintiffs that the lottery system violates immigration law by not providing a waiting list.

In addition to a waiting list, some have proposed a weighted lottery system whereby petitioners rejected in prior years get priority in the lottery. Petitioners can file multiple consecutive years and often do until the beneficiary runs out of nonimmigrant status and employment authorization in the US. An example is an F-1 student working pursuant to F-1 optional practical training (OPT). Such F-1 student may initially obtain one year of post graduation OPT and then may be eligible for two more years of OPT if they fall within one of the STEM fields. Once this OPT expires the F1 can try reenrolling an another F-1 program and requesting immediate curricular practical training that allows them to work while studying.

USCIS Temporarily Suspends H-1B Premium Processing

March 4th, 2017

USCIS announced that as of April 3, 2017, it will temporarily suspend processing of H-1B petitions via premium processing and that this suspension may last for up to six months. This suspension will not affect premium processing cases pending as of April 3, 2017, and these will be processed within the 15-day calendar period (or later if a request for evidence is issued).

Since the FY18 H-1B cap petitions cannot be filed before April 3, 2017, this suspension will bar any H-1B cap cases from being premium processed. The suspension also applies to H-1B cap-exempt petitions, which include those filed by institutions of higher education, governmental research organizations, H-1B extensions and H-1B change of employer petitions.

Although premium processing is suspended, USCIS will still consider expediting H-1B petitions through its extremely challenging expedite criteria. Such criteria include:

1. Severe financial loss to a company or person;
2. Emergency situation;
3. Humanitarian reasons;
4. Nonprofit organizations whose request is furtherance of the cultural and social interests of the US;
5. Department of Defense or national interest situation (request must come from the government);
6. USCIS error; or
7. Compelling interest of the US.

Premium processing is extremely important to those beneficiaries who have pending extension petitions and want to maintain their employment authorization while the extension is pending. The current rule is that the employment authorization of the beneficiary will be extended for 240 days after the expiration of the beneficiary’s H-1B visa status. Therefore, if the beneficiary’s H-1B petition expires on August 1, 2017, and the petition was filed in March 2017, the beneficiary’s employment authorization would be extended for 240 days past August 1, 2017. Petitioners have been converting pending H-1B extensions to premium processing before the filed extension petition reaches that 240-day period but now they will have to wait for regular processing. This could result in a gap in the beneficiary’s H-1B employment.

New H-1B Legislation Makes the Program More Restrictive

January 31st, 2017

Representative Zoe Lafgren of California introduced the ‘High-Skilled Integrity and Fairness Act of 2017’ to drastically reform the H-1B visa program, which is the predominant work visa for professionals in the US. This legislation does the following:

1. Prioritizes the allocation of H-1B visa numbers (which are capped) of companies willing to pay 200 percent of a wage calculated by a survey;
2. Eliminates the category of lowest pay;
3. Requires employers to first offer a vacant position to equally or better qualified American workers before seeking an H-1B or L-1B;
4. Raises the salary level at which H-1B dependent employers are exempt from the non-displacement and recruitment attestations requirements to greater than $130,000 (more than double the current $60,000 minimum salary for exemption);
5. Removes the ‘per country’ cap for employment-based immigrant visas so that foreign workers worldwide are treated more fairly;
6. Sets aside 20 percent of H-1B visas for small and start-up employers (50 or fewer employees); and
7. Creates a new path for F-1 students to obtain legal permanent residency.

This legislation will only make it more difficult for companies to grow and thrive by not increasing the overall H-1B visa quota and creating these additional requirements. Smaller companies may need to hire more entry-level workers in industries where there is a dearth of qualified US workers and assigning priority to the higher paid workers will obstruct these companies ability to attract knowledgeable and skilled workers. Small companies are the backbone of our economy and ultimately create more jobs for Americans.

Also, the current H-1B regulations already require H-1B dependent and non-exempt employers to conduct recruitment to ascertain the market for US workers. It is not necessary to convert the H-1B program into a full-scale PERM labor certification case, which requires employers to conduct recruitment in order to sponsor their foreign employees for legal permanent residency.

What Are My Alternatives If I Don’t Get an H-1B Visa Number?

January 8th, 2017

If a foreign national is not lucky enough to receive a number under the H-1B visa cap lottery, then there are other nonimmigrant visa alternatives for working in the US. The most popular ones are the L-1 intra-company transferee, E-1 or E-2 treaty trader or investor (this article will focus on the E-2) or O-1 extraordinary ability alien.

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 an affiliate or subsidiary thereof, and who are being transferred temporarily to the United States to work in an executive or managerial (L-1A), or specialized knowledge capacity (L-1B) for the same employer or a subsidiary or affiliate thereof. The L-1B has a maximum period of stay of five years, compared to the L-1A of seven years.

A petitioner can demonstrate “specialized knowledge” by establishing either one of two statutory criteria. Under the statute, a beneficiary is deemed to have specialized knowledge if he or she has: (1) a “special” knowledge of the company product and its application in international markets; or (2) an “advanced” level of knowledge of the processes and procedures of the company. INA 214(c)(2)(B).

The foreign employee may also be eligible for L-1A classification if he or she has served as a manager, functional manager or executives. The term “managerial capacity” means an assignment within an organization in which the employee primarily:

1. Manages the organization, or a department, subdivision, function or component of the organization;
2. Supervises and controls the work of other supervisory, professional, or managerial employees, or manages an essential function within the organization, or a department or subdivision of the organization;
3. Has the authority to hire and fire or recommend those as well as other personnel actions (such as promotion and leave authorization) if another employee or employees are directly supervised; or, if no other employee is directly supervised, functions at a senior level within the organizational hierarchy or with respect to the function managed; and
4. Exercises discretion over the day-to-day operations of the activity or function for which the employee has authority. (A first-line supervisor is not considered to be acting in a managerial capacity merely by virtue of the supervisor’s supervisory duties unless the employees supervised are professional.)

“Managerial capacity” involves not only managing other people, but also managing an essential function. In order to demonstrate that the beneficiary is managing a function (“functional manager”), it must be shown that the beneficiary:

1. Manages an essential function within the organization, or a department or subdivision of the organization;
2. Functions at a senior level within the organizational hierarchy or with respect to the function managed; and
3. Exercises discretion over the day-to-day operations of the activity or function for which the employee has authority.

“Executive capacity” means an assignment within an organization in which the employee primarily:
1. Directs the management of the organization or a major component or function of the organization;
2. Establishes the goals and policies of the organization, component, or function;
3. Exercises wide latitude in discretionary decision making; and
4. Receives only general supervision or direction from high level executives, the board of directors, or stockholders of the organization.

If the foreign employee is coming to the United States as a manager or executive to open or to be employed in a new office in the United States (in active operation for less than one year), it must be demonstrated that:

1. Sufficient physical premises to house the new office have been secured;
2. The beneficiary has been employed for one continuous year in the three year period preceding the filing of the petition in an executive or managerial capacity and that the proposed employment involved executive or managerial authority over the new operation; and
3. The intended United States operation, within one year of the approval of the petition, will support an executive or managerial position as defined above.

An alien is classifiable as a nonimmigrant treaty investor (E-2) if the following is demonstrated:

1. A requisite treaty exists between the United States and the country of which the treaty enterprise is a “national” (there is no treaty between the US and India);
2. There is at least 50% ownership of the investing enterprise by nationals of the treaty country;
3. There is citizenship in the treaty country by the principal investors and enterprise employees seeking admission through the treaty enterprise;
4. The alien has invested or is actively in the process of investing a substantial amount of capital in a bona fide enterprise in the United States, as distinct from a relatively small amount of capital in a marginal enterprise solely for the purpose of earning a living;
5. The alien is playing an essential role with the company, either as the investor who will develop and direct the enterprise, or as a qualified manager or highly trained and qualified employee; and
6. The alien intends to depart from the United States upon the termination of E-2 status.

Requirements (4) and (5), regarding the investment itself, are the most challenging aspect of the treaty investor visa petition. More specifically, it must be shown that:

1. The investor has made an irrevocable commitment of funds that represents an actual, active investment;
2. The investment is substantial, taking into account only those financial transactions in which the investor’s own resources are at risk;
3. The investment is not marginal in nature, that is, one that will only support the investor and his family; in most cases, it should create job opportunities for U.S. workers; and
4. The investor will develop and direct the investment.

The main differences between the L-1 and E-2 are that the E-2 does not require that the foreign national worked at least one year abroad for the qualifying company and that the L-1 does not require a significant investment nor a specific treaty so that a foreign national from any country can qualify. The most significant difference regarding legal permanent residency is that the L-1A has an immigrant counterpart in the EB-1C multinational petition, which means that the L-1A may qualify for faster-track legal permanent residency, bypassing the PERM labor certification process. No such special immigrant visa petition pertains to the E-2. The foreign national would have to invest $500,000 or $1 million in order to qualify under the EB-5 investor immigrant visa program, which has considerably greater requirements than the E-2 (although it is not restricted to treaty countries).

In some instances, the foreign national may qualify for both the L-1 and the E-2 (or E-1), in which case it is critical to consult with an attorney to review the other aspects of these nonimmigrant visas and the foreign national’s ultimate desire to obtain legal permanent residency in the US.

In order to obtain O-1 status extraordinary ability status, one must demonstrate extraordinary ability in the field of science, education, business, the arts or athletics. Extraordinary ability in the field of science, education, business, or athletics means a level of expertise indicating that the person is one of the small percentage who have arisen to the very top of the field of endeavor. An alien of extraordinary ability in the fields of science, education, business, or athletics must demonstrate sustained national or international acclaim and recognition for achievements in the field of expertise by providing evidence of:

(A) Evidence that the alien has been nominated for, or has been the recipient of, significant national or international awards or prizes in the particular field such as an Academy Award, an Emmy, a Grammy, or a Director’s Guild Award; or

(B) At least three of the following forms of documentation:

(1) Evidence that the alien has performed, and will perform, services as a lead or starring participant in productions or events which have a distinguished reputation as evidenced by critical reviews, advertisements, publicity releases, publications, contracts, or endorsements;

(2) Evidence that the alien has achieved national or international recognition for achievements evidenced by critical reviews or other published materials by or about the individual in major newspapers, trade journals, magazines, or other publications;

(3) Evidence that the alien has performed, and will perform, in a lead, starring, or critical role for organizations and establishments that have a distinguished reputation evidenced by articles in newspapers, trade journals, publications, or testimonials;

(4) Evidence that the alien has a record of major commercial or critically acclaimed successes as evidenced by such indicators as title, rating, standing in the field, box office receipts, motion pictures or television ratings, and other occupational achievements reported in trade journals, major newspapers, or other publications;

(5) Evidence that the alien has received significant recognition for achievements from organizations, critics, government agencies, or other recognized experts in the field in which the alien is engaged. Such testimonials must be in a form which clearly indicates the author’s authority, expertise, and knowledge of the alien’s achievements; or

(6) Evidence that the alien has either commanded a high salary or will command a high salary or other substantial remuneration for services in relation to others in the field, as evidenced by contracts or other reliable evidence; or

If these criteria do not readily apply to the foreign national’s occupation, comparable evidence may be submitted.

The O-1 nonimmigrant visa has an immigrant visa counterpart in the EB-1A extraordinary ability visa. The requirements are almost identical, although there are some differences, especially in the standards for the alien in the field of the arts. For the O-1, extraordinary ability in the field of arts means distinction, which is a high level of achievement in the field of arts evidenced by a degree of skill and recognition substantially above that ordinarily encountered to the extent that a person described as prominent is renowned, leading, or well-known in the field of arts. This is easier to prove than the EB-1A sustained acclaim and top echelon requirements.