Monique Kornfeld, Immagration Lawyer

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.

Immigration Judge Finds Racial Profiling in Detention Case

May 2nd, 2017

The Atlanta Journal-Constitution reported on April 28, 2017, that an immigration judge (IJ) in Atlanta found unconstitutional racial profiling in an immigration detention case in ruling against US Immigration and Customs Enforcement (ICE) agents. The IJ held that two ICE agents committed “egregious” racial profiling when arresting a man walking from his apartment to catch a ride to work, and that the US Department of Homeland (DHS) attorneys committed “willful misconduct” by advising the agents to ignore the IJ’s subpoena. See http://www.myajc.com/news/local/immigration-judge-finds-racial-profiling-detention-case/ZKpBEDYMJwi9OUSoD7nghI/.

US ICE agents arrested and took into custody Osvaldo Menese Chavez on March 6, 2017, as he walked away from his apartment complex to get a ride to work. DHS sought to deport Chavez on grounds he is an unauthorized immigrant. The ICE agents said that they were at Chavez’s location to arrest another individual. The agents asked to speak with Chavez because he looked like the other suspect and when he tried to run away they arrested him. The IJ noted at the initial court hearing that the agents had used similar reasons to support its other detentions. The IJ then asked DHS to bring the officers to court to testify but the DHS attorneys instructed the agents not to appear and refused to bring the officers to court.

The IJ held that DHS’s conduct thwarted Chavez’ ability to make his case and found the agents’ conduct to be an “egregious violation” of the Fourth Amendment’s protection against unreasonable searches and seizures. “The fact that this judge was so offended by the government’s conduct sends a strong message. It says no one is above the Constitution,” said AILA member Carolina Antonini, who teaches immigration law at Georgia State University.

USCIS Will Terminate TPS Status for Guinea, Liberia and Sierra Leone

April 25th, 2017

On April 19, 2017, USCIS announced that it will not renew Temporary Protected Status (TPS) for beneficiaries from Guinea, Liberia and Sierra Leone and that the designations will be terminated on May 21, 2017. The Department of Homeland Security has also recommended terminating TPS status for Haiti.

USCIS may designate a foreign country for TPS if conditions in the country are unsafe for its nationals to returning safely, or in certain circumstances, where the country cannot adequately manage the return of its nationals. A national of a TPS country, or someone who last resided there, may apply for TPS status while in the US.

USCIS may designate a country for TPS based on one of the following temporary conditions:

• Ongoing armed conflict (such as civil war):
• An environmental disaster (such as an earthquake), or an epidemic; or
• Any other extraordinary and temporary situation.

TPS beneficiaries who are found primarily eligible based on an initial review of their cases are granted the following:

• Protection from being removed from the US:
• Ability to obtain employment authorization; and
• Ability to obtain permission to travel abroad.

Also, if TPS is granted, then the beneficiary cannot be detained by DHS on the basis of his or her immigration status in the United States.

While TPS is only a temporary benefit, as opposed to legal permanent residency, and does not lead to any other immigration status, it does not bar someone from seeking to change immigration status. A TPS beneficiary may apply for another type of nonimmigrant visa, such as an H-1B specialty worker or F-1 foreign student, file to adjust status based on an immigrant visa petition (based on family qualifications, marriage or employment) or apply for any other immigration benefit (e.g. asylum).

Current countries designated for TPS are the following:

• El Salvador;
• Guinea;
• Haiti;
• Haiti;
• Honduras;
• Liberia;
• Nepal;
• Nicagarua;
• Sierra Leone;
• Somalia;
• Sudan;
• South Sudan;
• Syria; and
• Yemen.

To be eligible for TPS the applicant must be a national of the designated TPS country or a person who last habitually resided in that country. The applicant must also meet certain physical presence and residence requirements in the US, which are detailed in the TPS chart at https://www.uscis.gov/humanitarian/temporary-protected-status#What%20is%20TPS?.

Certain crimes and activities render a person ineligible for TPS. These include convictions of any felony or two or more misdemeanors committed in the US; other crimes making a person inadmissible to the US; security-related activities making a person inadmissible to the US; and engagement in terrorism or persecution of others.

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).

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).

How to Obtain the Green Card in the US Based on Marriage

April 16th, 2017

Those wishing to obtain legal permanent residency, or “green card” status, based on marriage should obtain legal counsel before filing for such status. Too many foreigners have made the mistake of filing the wrong type of case and subjecting themselves to a possible fraud finding, which can lead to a permanent bar to coming to or remaining in the US. There are two ways of obtaining legal permanent residency: (1) by filing to adjust status to legal permanent residency for those already in the US; and (2) to obtain an immigrant visa from a US consulate abroad after being interviewed by a consular official in a foreign country.

Most foreigners prefer to change their status in the US if they are already here, since the processing time to obtain an immigrant visa abroad can be long and the process of going through the US consulate abroad is burdensome. Most importantly, for those who are spouses of US citizens, the wait could be up to one year on average, and for those whose spouses are only legal permanent residents, the wait could be months, or even years longer, depending on immigrant visa availability. Also, if one must consular process abroad, he or she may be unable to enter the US in the interim on another type of nonimmigrant visa.

In order to adjust to change status to legal permanent residency in the US (Form I-485), the foreign applicant must show that he or she entered the US lawfully (inspected by a US border official) and that he or she did not enter the US with the intent to remain and obtain legal permanent residency if he or she did not enter using a nonimmigrant that allows for immigrant intent (such as the H-1B or L-1A or L-1B). In other words, a foreigner may not enter the US as a B-2 visitor or visa waiver entrant with the intent to remain in the US and get his or her green card status. This bar only applies if the US border official asked the foreigner his or her intent or purpose for staying in the US and the person lied.

If at the adjustment of status interview the US adjudications officer determines that the person entered with immigrant intent and misrepresented his or her purpose to the US border official, then a fraud finding will be made. If the applicant cannot obtain a fraud waiver, showing extreme hardship to a spouse or parent who is a legal permanent resident or US citizen, then his or her case will be denied and she will be barred from the US. The applicant can file the hardship waiver again, and that is recommended where circumstances change showing the extreme hardship. USCIS’ policy is to deny such hardship waivers where the qualifying relative would suffer the usual emotional hardship from the separation. It is critical to obtain as much evidence as possible documenting how such emotional hardship would be unusual and extreme, including an evaluation from a psychologist or psychiatrist and evidence of a prior history of depression, suicide or anxiety and any medical treatment followed. The applicant can also provide other evidence of hardship, such as economic hardship were the US spouse compelled to live abroad and lose the source of his or her income.

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.